The Proof Co.

National Labor Relations Board - Board Decisions

Feb 3, 1956

115 N.L.R.B. 309 (N.L.R.B. 1956)

THE PROOF COMPANY 309
hourly paid employees at the Employer's plant at Danville, Illinois,
excluding office and clerical employees, toolmakers, bench machinists,
toolroom machine operators, tool crib attendants, toolroom helpers,
general maintenance employees-including craft helpers, oilers, power-
house employees, maintenance electricians, helpers, and apprentices-
professional employees, guards, and supervisors as defined in the Act.]
The Proof Company and International Union , United Automobile,
Aircraft & Agricultural Implement Workers of America,
(UAW-AFL-CIO), Local No. 943 . Case No. 13-CA-1834. Feb-
ruary 3,1956
DECISION AND ORDER
On November 22, 1955, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Proof Com-
pany, Goshen, Indiana, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile, Aircraft & Agricultural Implement Workers of
America, (UAW AFL-CIO), Local No. 943, as the exclusive repre-
sentative of its production and maintenance employees, excluding
office clerical employees, watchmen and guards, and professional and
supervisory employees as defined in the Act.
(b) Refusing to recognize the preferential seniority granted to the
officers and members of the bargaining committee of the Union ac-
cording to the request of the Union and the agreement of the Company
115 NLRB No. 53.
310, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereto on or about August 19, 1954; and from refusing the Union a
proper and reasonable use of a bulletin board within its plant.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request bargain collectively with International Union,
United Automobile, Aircraft & Agricultural Implement Workers of
America, (UAW-AFL-CIO), Local No. 943, as the exclusive repre-
sentative of the employees in the bargaining unit hereinabove de-
scribed with respect to wages, rates of pay, hours of employment, and
other terms and conditions of employment, and, if an understanding
is reached, embody it in a signed agreement.
(b) Post at its Goshen, Indiana, plant, copies of the notice attached
hereto marked "Appendix A." I Copies of said notice, to be furnished
by the Regional Director for the Thirteenth Region, shall, after be-
ing duly signed by a representative of the Respondent, be posted by it
for a period of sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by other material.
(c) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
3 In the event that this Order is enforced by a decree of a United States Court of Appeals, 0
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant 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 Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, (UAW-AFL-CIO), Local No. 943, as the
exclusive representative of the employees in the bargaining unit
described below with respect to rates of pay, wages, hours of
employment, and other conditions of employment. The bargain-
ing unit is :
All production and maintenance employees excluding office
clerical employees, watchmen and guards, and professional
and supervisory employees as defined in the Act, employed
at our Goshen, Indiana, plant.
WE WILL NOT interfere with, restrain, and coerce our employees
in the exercise of their rights guaranteed in Section 7 of the Act
THE PROOF COMPANY 311
by refusing to recognize the preferential seniority heretofore
granted to the officers and members of the bargaining committee
of the Union, or refusing the Union the proper use of a bulletin
board within our plant, or in any like manner interfere with,
restrain, or coerce our employees in the exercise of their rights
guaranteed in Section 7 of the National Labor Relations Act, as
amended.
THE PROOF 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
International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, (UAW-CIO), Local No. 943, hereinafter sometimes called
the Union or Local 943, on October 7, 1954, filed a charge, and on November 19,
1954, filed an amended charge, against The Proof Company, hereinafter sometimes
called the Respondent or the Company, asserting that the Company had engaged in
and was engaging in unfair labor practices within the meaning of Section 8 (1), (3),
and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, herein-
after called the Act. Thereafter, on September 8, 1955, the General Counsel of the
National Labor Relations Board, on behalf of the Board, by the Regional Director
for the Thirteenth Region, brought this proceeding under Section 10 (b) of the
Act; the complaint alleges that the Respondent Company had engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of
the Act. The Respondent filed a timely answer to the complaint, denying the sub-
stantive violations of the Act as alleged therein and setting up certain affirmative
defenses, mentioned below.
Pursuant to notice, this matter came on to be heard before the duly designated
Trial Examiner at Goshen, Indiana, on October 18, 1955. All parties were repre-
sented by counsel at the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence relevant and material
to the issues, to argue orally upon the record, and to file briefs and proposed findings
and conclusions.
Upon the entire record in the case, and from his observation of the witneses,' the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, The Proof Company, is and at all times herein referred to has
been, an Ohio corporation, whose principal office and place of business is located in
Goshen, Indiana, where it is engaged in the manufacture of automotive equipment.
In the course and conduct of its said business the Respondent causes, and at all times
material hereto has caused, large quantities of its finished products to be transported
in interstate commerce from its said plant in Indiana into and through States of the
United States other than the State of Indiana. During the calendar year 1954,
the value of finished products sold by the Respondent and shipped from its plant in
Goshen, Indiana, to points outside of the State of Indiana, exceeded $500,000.
*Four witnesses were called in this case: Charles V. Kilburn, president and manager
of the Respondent ; Harvey Petty, staff representative of the Union ; John G. Suback, a
supervisor employed by the Company ; and Mary Sailor , an employee of the Company and
an officer of Local 943.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent is, and during these times has been, engaged in interstate com-
merce and its operations affect and have affected commerce within the meaning of
Section 2 (6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, (UAW-CIO), Local No. 943, is, and at all times material here-
to has been, a labor organization within the meaning of Section 2 (5) of the Act .2
M. THE UNFAIR LABOR PRACTICES
A. The pleadings
The complaint alleges in substance that the Respondent: ( 1) Since on or about
September 13, 1954, did fail and refuse and has continuously failed and refused to
bargain collectively with the Union, although requested by the Union so to bargain
at all of these times, as the exclusive bargaining representative of the employees in
an appropriate bargaining unit; (2) on or about September 10, 1954, unilaterally and
without consultation with the Union, revoked the preferential seniority granted to
the officers and members of the bargaining committee of the Union; and (3) inter-
fered with, restrained, and coerced and is further interfering with, restraining, and
coercing its employees in an exercise of their rights guaranteed in Section 7 of the
Act in that on or about October 29, November 2 and 17, and December 7, 1954, the
Respondent by its supervisor, John Suback, and one of its officers, C. V. Kilburn, tore
down notices posted on the bulletin board by the Union. Alleged acts of the Re-
spondent or its representatives or agents other than these, said to constitute violations
of Section 8 (a) (1) of the Act, were dismissed at the hearing on motion of counsel
for the General Counsel.
The complaint alleges that "on June 18, 1954, and prior thereto, and at all times
after June 18, 1954, a majority of the employees in the unit designated and have des-
ignated the Union as their representative for the purpose of bargaining collectively
with the Respondent. .: .; and "that all production and maintenance employees
excluding office clerical employees, watchmen and guards, and professional and su-
pervisory employees as defined in the Act constitute a unit appropriate for the pur-
poses of collective bargaining." 8
The Respondent, in its answer to the complaint, denies contraventions of Section
8 (a) (1) and (5) of the Act and sets up certain affirmative defenses: (1) It denies
that the Union is now the bargaining representative of the employees in an appro-
priate bargaining unit and-says that the National Labor Relations Board was advised
prior to September 15, 1954, by written evidence to the effect that the Union did
not represent a majority of the employees of the Respondent, and further that the
Union did not represent a majority of these employees at the time or times the
Respondent was requested to negotiate with the Union; (2) that prior to September
15, 1954, evidence was given to the Board that some 103 of the employees of the
Respondent (constituting more than a majority of individuals in the bargaining unit)
insisted that they were not to be represented by the Union; (3)_ that more than 1 year
had passed between the date of certification of the Union as bargaining representa-
tive and the filing of the complaint herein and the Respondent "had fair doubts about
the Union's continuing majority. [and] That despite the fair doubts of this
Respondent," it was and is informed and believes that the Board will not accept a
petition for election from the Respondent after the expiration of the 1 year by
reason, among other things, of the pendency of unfair labor practice charges' against
it; and (4) that bargaining with the Union would have resulted in chaos because of
schisms "clearly demonstrated within the Union subsequent to the election and
during and prior to the normal period for negotiation with the Company." The
Respondent says in its answer that on September 13, 1954, it advised representatives
9 Upon the uncontradicted testimony of Mary Sailor, a member of Local 943 and an
officer thereof, it is found that the Union continued as an organized body and at all times
functioned as a labor organization during the times material hereto.
8 An election was conducted by the Board among the employees In the unit , as described,
on June 18; 1954, and the Union was certified as the representative of the employees In
this unit on June 28, 1954. Cases Nos 13-RC-3329 and 13-RC-3599 ( not reported In
printed volumes of Board Decisions and Orders). The tally of ballots in this election
shows that out of 204 votes cast in that election, 128 were in favor of Local 943, UAW-
CIO, 71 In favor of International Brotherhood of Electrical Workers, AFL, with 5 chal-
lenged and 1 void, out of approximately 270 eligible voters.
THE PROOF COMPANY 313
of the Union that it felt that further negotiations would be useless and an idle
gesture, "inasmuch, as according to the information and behalf of Respondent, the
Union could not speak for a majority of the parties for whom it sought to bargain
and that irrespective of the intent of the Union such condition existed as to make
it impossible to carry on negotiations and denies that Respondent refused to carry
on negotiations," and offers to show that such negotiations would have been an idle
gesture because of the lack of representation of employees by the Union, and that
"the same condition that existed as of September 13, 1954, has continued and does
continue down to and including the date of this answer." Concerning the alleged
revocation of the preferential seniority granted to officers and members of the
bargaining committee, the Respondent in its answer admits that prior to September
10, 1954, and subsequent to the June 18 election, the Respondent "had temporarily
recognized preferential seniority to officers and members of the bargaining com-
mittee" and says that on or about September 10, 1954, it discontinued this temporary
recognition of preferential seniority without the consent of the Union, denying that
it was in any manner bound to continue the temporary arrangement. The Re-
spondent avers that at the time of the discontinuance of the temporary arrangement
for preferential seniority, it had determined and believed that the very existence of
preferential seniority was one of the matters giving rise to labor difficulties within the
plant and the inability of the Union to speak for a majority of the members.
Answering the allegations of the complaint that the Respondent by certain of its
representatives tore down notices posted on the bulletin board by the Union, the
Respondent says that these notices were at no time posted on the bulletin board but
were posted at other and not acceptable points within the plant.
B. The Company's refusal to bargain; its denial of preferential seniority; and its
refusal of bulletin board use
The essential facts in this case are not in dispute.
After an exchange of correspondence initiated by the Union subsequent to the
certification on June 28, 1954, the Union and the Company met for negotiation
purposes on July 12, 13, and 21 and August 9 and 19, 1954.
During the course of the first 2-day meeting between representatives of the
Company, a considerable part of the time was consumed by discussion of a proposed
temporary agreement, submitted by the Union, which read (in part):
II
Paragraph 1. It is agreed and understood that the sole purpose of this
temporary agreement is to provide an orderly procedure for the adjustment of
any grievances that might arise during the period of negotiation for a permanent
agreement between the Company and the Union.
The proposed temporary agreement also had in it specific provisions for the adjust-
ment of complaints and grievances, for union security, for checkoff of union
initiation fees and dues, and for provision by the Company of "bulletin boards for
the use of the Union."
The Company then took the position that it should not be required to sign the
"temporary agreement," but that it would be better to negotiate a full contract, and
that any tentative agreement made during the course of bargaining should be subject
to full agreement by both parties at the end. The Union seems to have agreed,
except that it assumed a tacit agreement on some points. Thereafter, and at the
time negotiations were suspended on August 19, the Company had allowed preferen-
tial seniority to the officers and members of the bargaining committee of the Union,
which it now says it had a right to rescind, and which it did later rescind, as reported
below.
When negotiations between union and company representatives were suspended on
August 19, it was at a time when the Company had offered a general wage increase
of 5 cents an hour, which the union representatives considered unacceptable. It
appears clearly upon the record that on that day no agreement had been made nor
had there been a meeting of the minds of the representatives of either of the parties.
The question of a further meeting was left open, subject to a request from one party
to the other for further discussion.
On August 19 or 20, 1954, the Company laid off many of its employees, and on
about September 10, 1954 , laid off a number of others . After these layoffs none of
the officers or members of the bargaining committee of the Union was at work; that is,
all employees who then held preferential seniority as a result of the company-union
meetings ending August 19 were laid off; other employees were not laid off at these
-314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times . The number of the employees who temporarily held preferential seniority was
5 or 6-the number of employees kept at work was approximately 20. The Company
maintains that since the granting of preferential seniority to the officers and members
of the bargaining committee was only temporary, it had the right to rescind at this
time . After the meeting of August 19, 1954, no further conference was held be-
tween union and company representatives with a mutual intent to negotiate a col-
lective-bargaining agreement. Several times the Union requested to meet. The
Company refused, its president taking the position that he would discuss any grievance
presented to him by an individual employee or a group of employees. The Trial
Examiner believes, and finds on the record hereof, that the Company, by its presi-
dent, has met with individuals representing themselves as members of Independent
Proof Workers, an organization of employees of the Respondent, and other persons
employed by the Company, to discuss grievances and the matter of representation
of employees of the Company by a bargaining representative .4
The Company, by counsel, by letter dated September 1, 1954, advised a staff repre-
sentative of the parent body of the Union that the Respondent
... has since the date of our last conference received clear evidence that the
employees have disavowed your organization as their bargaining agent . Accord-
ingly, The Proof Company feels that it would be of no avail for their representa-
tives to meet with you for the purpose of negotiating an agreement.
Under date of February 1, 1955, the staff representative of the Union directed a
letter to counsel for the Company, in which he said , in substance, that the Union had
been informed that the Company "has been and is bargaining with a dissident group
of employees not representative of this Union," protested on behalf of the Union,
asked that the Company not bargain except with representatives of the Union, and
asked that a meeting be arranged between the representatives of the Company and the
Union on February 9, 1955. By letter dated February 4, 1955, counsel for the Com-
pany responded to the Union's representative, advising the latter that he had visited
the Company at Goshen, had then advised his client not to deal with any so-called
dissident group, and said, in response to the request for a February 9 meeting,
... that there is no purpose in a meeting at this time and going through the
motions of a bargaining session when it is clear from our investigation that it
would be impossible to obtain a confirmation of any arrangement arrived at.
The representative of the Union replied to his letter, under date of February 8, 1955,
adhering to his prior statement in writing and asking that a certain date be set within
the next 10 days to resume negotiations.
The president of the Company, at the hearing of this case, in response to a question
submitted to him by counsel for the General Counsel, indicated a strong belief that
he was right in his feeling that the Union was not truly the representative of the em-
ployees in the designated bargaining unit:
Q. [By Mr. Maslanka, for the General Counsel] Mr. Kilburn, why were you
interested in the fact that there could be or could not be an election in February
of 1955? What was your interest in that?
A. [By Mr. Kilburn] In the fact that there could or could not be-well, it
was indicated to me and it was my firm belief that the CIO-UAW did not
represent the people in my employ. It was in my interest that the people that
were truly in the' majority be able to get in a position to negotiate with us for
a contract.
Between February 4, when counsel for the Company wrote to the union representa-
tive, and the latter's letter of February 9, a notice was issued to the employees
of the Company, signed by its president, dated February 7, 1955:
To OUR EMPLOYEES:
We are directing this letter to our employees in view of what we believe to
be confusing and conflicting rumors, and statements circulating among our
employees, having to do with the selection of a bargaining committee or agency
or a union at our plant. We shall attempt to state the facts.
Prior to April 1954, a written agreement existed between an American Fed-
eration of Labor union and this company. The representation of our em-
' One Corinne Smith, after the filing by her of a petition for decertification (filed after
the certification of Local 943), was advised by the Regional Director, under date of Sep-
-tember 15, 1954, that "It does not appear that further proceedings are warranted inas-
much as the petition [for decertification of Local 943] is untimely. . . (Case No.
18-RD-216 , not reported in printed volumes of Board Decisions and Orders.)
THE PROOF COMPANY 315
ployees by this union was attacked by certain other unions and individuals, and
subsequently an election , to which the company consented was held.
After an election and a runoff election , and deadlocked negotiations with the
certified union , a large majority of our employees filed with the N. L. R. B. an
objection to bargaining by the selected union and asked that the union be de-
certified . The N . L. R. B. rejected this petition as being filed too soon.
The company has taken the position that employees , individually or as a
group , are entitled to bargain for themselves or through such group as the
majority select and support . Various charges, complaints and supplements
to complaints have been made against the company because of this position.
The Union which claims bargaining rights has repeatedly requested that the
company reenter negotiations with the Union . Employees on the other hand
have come to management and insisted that the Union not bargain for them.
Very recently , a committee of 5 of our employees , together with their attorney
from Goshen, Indiana, representing a different and independent union , called
upon the company and insisted upon their rights to negotiate with the company.
The company stated to this committee and to their counsel that we felt it would
be as improper to negotiate an agreement with them as it would be to negotiate
with a union which had been shown not to be representative of the employees.
The company advised this committee , and advises all employees , that we are
not unmindful of your problems , and of future problems that will arise. The
company has agreed , however, to take under advisement the problems and
grievances submitted to it by this independent union . We have further agreed
to discuss from time to time, as problems arise , various independent grievances
that may be presented to this independent union in an effort to continue har-
monious relationships in our plants.
We feel that , beyond the point of discussing individual grievances which em-
ployees may have, our hands are tied until such time as the proper Govern-
mental agency will permit an election to determine the true up-to -date desires
of the majority of our employees . We are-informed that a new election can be
requested in the very near future.
I personally wish to remind our employees that any individual employee is
free to come to my office at any time to discuss his own individual problems.
Yours very truly,
THE PROOF COMPANY
(Signed ) C. V. KILBURN
At some time during the negotiation meetings in July and August , it seems plain
enough that the Company agreed that the Union could, for its proper purpose, uti-
lize a bulletin board previously installed by the Company and that Local 943 did use
the board up until about late October when, without notice to the Union , the right
of use was revoked . Then and later Kilburn and Suback , or each of them , removed
notices as they were posted. Notices posted by or on behalf of another group of
employees also were removed . In the language of Kilburn:
The matter came to my attention after it became questionable that the CIO had
a majority of the people that they were representing . It got to be a chaotic
situation where another group and themselves were both trying to post notices
and it got to the point that employees were almost at blows, instead of attend-
ing to their work . I decided we would nail the bulletin board shut and it would
not be used by anyone . . . . After it was nailed shut , there could be no more
bulletins posted in an appropriate place, and neither was I requested to have
them posted . I tore down any that were posted in improper places.
In September 1954 , Corinne Smith , an employee of the Respondent had been ad-
vised that a petition for decertification of Local 943 filed by her was considered not
timely ( Case No. 13-RD-216). In February 1955, she and several other employees,
with an attorney , George L. Pepple, all representing the group of employees called
the Independent Proof Workers, met with Kilburn and counsel for the Company,
and at the time were informed that their request as an organized group for recogni-
tion could not be granted , although the president of the Company would "meet with
any group that had grievances to handle, as such ." Apparently , Kilburn kept this
promise; a company letter directed to one Patsy Ganger over Kilburn 's signature,
dated April 19, 1955 , stated in part:
Prior to July 1954 you were employed at our plant . In your behalf , the "Inde-
pendent Proof Workers" have requested us to offer reemployment ,to you. We
are therefore , by this letter, offering employment to you at this time.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the uncontradicted evidence herein, the Trial Examiner now finds
that prior to, on, and after, February 7, 1955, the Respondent chose to ignore
the certification of the Union by the Board as representative of its employees in
an appropriate bargaining unit; and that, in the absence of a showing by the Re-
spondent of good cause for ignoring the certification and the established rights
thereunder of the Union, it was then and now is engaged in unfair labor practices
in contravention of Section 8 (a) (1) and (5) of the Act. The Employer should
not have undertaken to decide that the Board's certification of the Union as statutory
bargaining representative of its employees in the designated unit was not valid
and proper, or that because of change of circumstances it had the right, within a
few months after the certification, to refuse to bargain with or recognize the Union
as the representative of these employees. In the absence of impropriety amounting
to an abuse of discretion, the certification of the Board must stand .5 There is
no claim, nor does it anywhere appear upon the record herein, that the Board did
not act in strict conformity with the procedural requirements set forth in Section
9 (c) of the Act and the applicable rules of procedure when it certified the Union.
Nor is it shown that any such unusual circumstances arose after the certification
as to justify the Respondent in its refusal to bargain with the Union after August 19,
1955.6
The Trial Examiner believes, and finds, that the removal of union notices from
the bulletin board, and the withdrawal of preferential seniority for officers and mem-
bers of the bargaining committee of the Union, without prior notice to the Union,
within the circumstances of each occurrence and at the times set forth. above, could
and did result in discouragement of employees in their adherence to the Union, and
an interference with rights guaranteed to them by Section 7 of the Act.7
Concluding Findings
The admissions contained in the answer to the complaint, together with the un-
contradicted testimony herein, shows that the Respondent cannot successfully deny
that it did fail and refuse and has continuously failed and refused since on or about
September 13, 1954, to bargain collectively with the Union, and did fail and refuse
and has continuously failed and refused since that time to recognize the Union as
the exclusive representative for the purposes of collective bargaining of the em-
ployees in the bargaining unit found to be appropriate by the Board. It is not enough
for the Respondent to say that after the certification of the Union on June 28, 1954,
that prior to and on September 15, 1954, the Board was advised and the Respondent
believes that the Union did not then represent a majority of the employees. The
Respondent as an employer should not itself have assumed the right to determine
that it need not bargain with the certified union within 3 months after such cer-
tification.
In Ray Brooks v. N. L. R. B., 348 U. S. 96, the Supreme Court of the United States
held that an employer is under a statutory duty to bargain with a union certified
by the Board, even though after the election which resulted in the certification, the
Union had lost a majority of the employees from its membership without the fault
of the employer. In that case Mr. Justice Frankfurter, writing for the Court, said
(p.103):
Petitioner contends that whenever an employer is presented with evidence that
his employees have deserted their certified union, he may forthwith refuse
to bargain. In effect, he seeks to vindicate the rights of his employee to select
their bargaining representative. If the employees are dissatisfied with their
chosen union, they may submit their own grievance to the Board. If an em-
ployer has doubt about his duty to continue bargaining, it is his responsibility
to petition the Board for relief, while continuing to bargain in good faith at
least until the Board has given some indication that his claim has merit. Al-
though the Board may, if the facts warrant, revoke a certification or agree not
to pursue a charge of an unfair labor practice, these are matters for the Board;
they do not justify employer self-help or judicial intervention. The underly-
6 N. L. R. B. v. White Construction and Engineering Co., Inc., 204 F. 2d 950, 952 (C. A.
5) ; N. L. R. B. v. Huntsville Mfg. Co., 203 F. 2d 430, 433, 434 (C. A. 5) ; N. L. R. B. v.
Whittier Mills Co., 111 F. 2d 474, 477 (C. A. 5) ; and cf. N. L. R. B. v. Sidran Sportswear,
181 F. 2d 611 (C. A. 5).
6 American Steel Foundries , Cast Armor Division, 112 NLRB 531, and cases cited in foot-
notes 3 and 4 of the Board's decision.
7 See Mathieson Chemical Corporation et al., 114 NLRB 486.
THE PROOF COMPANY 317
ing purpose of this statute is industrial peace. To allow employers to rely on
employees' rights in refusing to bargain with the formally designated union is
not conducive to that end, it is inimical to it. Congress has devised a formal
mode for selection and rejection of bargaining agents and has fixed the spac-
ing of elections, with the view of furthering industrial stability and with due
regard to administrative prudence.
See also The Baker and Taylor Co. 109 NLRB 245, 248.
The argument of the Respondent that more than 1 year has passed between the
date of certification and the filing of the complaint herein is specious; the acts
constituting a refusal to bargain and to recognize the Union occurred within 3
months after the Union was certified as representative of the employees in the
designated unit. So, too, the stated belief of the Respondent that the Board would
not accept a petition of election from the Respondent after the expiration of the
year because of the pendency of the unfair labor practice charges cannot be
accepted in the absence of any showing that such a petition actually was filed by
the Company. Even without such a showing, the defense is invalid in the face of
the unfair labor practices committed at the times shown within the certification
year.
On the basis of the foregoing determinations, therefore, it is found that Local 943
is a labor organization certified by the Board as the employees of the Respondent
in the unit comprised of all production and maintenance employees, excluding office
clerical employees, watchmen and guards, and professional and supervisory
employees as defined in the Act, who are employed at its Goshen, Indiana, plant;
and that the Respondent, after the certification of the Union as collective-bargaining
representative of the employees within this unit on June 28, 1954, has, since on or
about September 13, 1954, refused and continues to refuse to bargain collectively
with Local 943 as the representative of the employees in this unit, and by such
refusal contravened and continues to contravene the provisions of Section 8 (a) (5)
of the Act. Further, it is found that by refusing to bargain collectively with Local
943, as such representative, the Respondent has contravened and continues the pro-
visions of Section 8 (a) (1) of the Act, in that such refusal has the necessary effect
of interfering with, restraining, and coercing employees of the Respondent in the
rights guaranteed to them under Section 7 of the Act. It is further found that
the Respondent by unilaterally, and without consultation with the Union, revoking
the preferential seniority granted to the officers and members of the bargaining
committee of the Union, or on about September 10, 1954, and its denial of the use
of the bulletin board at various times, has contravened and continues to contravene
the provisions of Section 8 (a) (1) of the Act, in that by such actions the Respondent
has engaged in activities which have the necessary effect of interfering with,
restraining, and coercing employees of the Respondent in the rights guaranteed to
them under Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent, since on or about September 13, 1954, and
at all times thereafter, refused and continues to refuse to bargain collectively with
Local 943 as the exclusive representative of its employees in an appropriate unit
and having found further that the Respondent has failed and refused to bargain
collectively with Local 943 with respect to wages, hours of employment, and condi-
tions of employment, and all other matters as required by the Act, and by so doing
has interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act, it will be recommended that the Respondent
cease and desist therefrom.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, (UAW-CIO), Local No. 943, is a labor organization within
the meaning of Section 2 (5) of the Act.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By refusing and continuing to refuse to bargain collectively with the said Local
943 as the exclusive representative of all its production and maintenance employees,
excluding office clerical employees, watchmen and guards , and professional and
supervisory employees as defined in the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the
Act.
3. By refusing and continuing to refuse to bargain with Local 943, as aforesaid,
the Respondent has interfered with and continues to interfere with the rights guar-
anteed to its employees under Section 7 of the Act, and thereby has engaged in and
is engaging in an unfair labor practice within the meaning of Section 8 (a) (1) of
the Act.
4. By unilaterally , and without consultation with Local 943, on or about September
10, 1954 , revoking the preferential seniority granted to the officers and members of
the bargaining committee of the Union, and by denying to the Union the use of a
bulletin board , the Respondent has interfered with and continues to interfere with
the rights guaranteed to its employees under Section 7 of the Act, and thereby has
engaged in and is engaging in an unfair labor practice within the meaning of
Section 8 (a) (1) of the Act.
5. The above-described labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Local 140, Bedding, Curtain & Drapery' Workers Union, United
Furniture Workers of America, AFL-CIO i and Cenit Noll Sleep
Products, Inc. Case No. 3-CC-340. February 3, 1956
DECISION AND ORDER
On November 9, 1955, Trial Examiner William F. Scharnikow
issued his Intermediate Report in the above -entitled proceeding, find-
ing that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be dis-
missed, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief. - .
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report , the exceptions and brief , and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
We agree with the Trial Examiner that it would not effectuate the
policies of the Act to assert jurisdiction in this proceeding. If the
Company had not had any operating experience its prediction of the
volume of business it would do might have served to meet our jurisdic-
tional standards. Actual sales experience , however , during the first
3 months of its operations fall so far short of prediction that this cir-
cumstance , among other things , makes unwarranted , in our opinion,
1 As the AFL and the CIO merged subsequent to the hearing in this case, we are taking
notice thereof and amending the name of the Respondent herein.
115 NLRB No. 54.