Webster Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1940

27 N.L.R.B. 1338 (N.L.R.B. 1940)

In the Matter of WEBSTER MANUFACTURING, IN G. and AMERICAN FED-
ERATION OF LABOR ON BEHALF OF INTERNATIONAL ASSOCIATION OF MA-
CHINISTS , LOCAL No. 1346, AND INTERNATIONAL MOLDERS' UNION,
LOCAL No. 254, AND FEDERAL LABOR UNION, No. 18581, ALL AFFILIATED
WITI-I THE AMERICAN FEDERATION OF LABOR
Case No. C-1667.-Decided November 13,1940
Jurisdiction : machinery and equipment manufacturing industry.
Unfair Labor Practices
Collective Bargaining: Union's majority indicated by signed authorizations.
Committee composed of representatives of three unions has been duly desig-
nated to jointly represent the employees, notwithstanding the fact that
some of the employees signed cards authorizing one of the three unions,
rather than the joint committee, to represent them.
Absence of membership on part of employees who have designated a union
as their bargaining representative does not affect the authority of the union
to act on their behalf.
Designation of employer by name of predecessor, rather than successor,
corporation on some authorization cards signed by a majority of the employees
does not affect the authority of the union to act as the bargaining representa-
tive of the employees where the employment relationship continued without
interruption.
Evading and delaying negotiations by referring representatives of em-
ployees from one official of management to another, each of whom in turn
denied that he had authority to enter into an agreement, constitutes a
failure to bargain in good faith.
Shifting position by representative of management with respect to entering
into signed agreement constitutes a failure to bargain in good faith
Presentation to employees during the course of negotiations of unilateral
statements of policy which fail to grant recognition to the employees' repre-
sentatives and are subject to change at the employer's will constitute
a violation of the Act.
Remedial Orders : employer ordered upon request to bargain collectively with
the unions.
Unit Appropriate for Collective Bargaining
Production and maintenance employees in some, but not all, departments
of a plant constitute an appropriate unit in absence of evidence that em-
ployees in excluded departments have been organized by any other labor
organization, or are eligible to join or become members of the labor organiza-
tions involved. -
Mr. Max W. Johnstone, for the Board.
Mr. Stanley J. Heitt and Mr. John B. Nordholdt, Jr., of Toledo,
Ohio, for the respondent.
27 N. L. R. B., No. 213.
1338
WEBSTER MANUFACTURING,- INC. 1339
Mr. William R. McCourt, of Cleveland, Ohio, for the I. A. M.
Mr. Samuel R. Isard, of Dayton, Ohio, for the Federal Union.
Mr. John Schmid, of Salem, Ohio, for the Molders.
Mr. David H. Karasick, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by the American
Federation of Labor, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Eighth Region
(Cleveland, Ohio), issued its complaint, dated June 10, 1940, against
Webster Manufacturing, Inc., Tiffin, Ohio, herein called the respond-
ent, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint, accompanied by notice of hearing, were duly served
on the respondent; Federal Labor Union, No. 18581, herein called
the Federal Union; International Molders' Union, Local No. 254,
herein called the Molders; International Association of Machinists,
Local 1346, herein called the I. A. M.; and the American Federation
of Labor, herein called the A. F. L.
Concerning the unfair labor practices, the complaint, as amended
at the hearing, alleged in substance that, on or about September 7,
1939, and thereafter, the respondent, upon request, refused to bargain
collectively within the meaning of the Act with the Federal Union,
the Molders, the I. A. M. and the A. F. L., herein collectively called
the Unions, concerning rates of pay, wages, hours of employment,
grievances, and other terms and conditions of employment , thereby
interfering with, restraining, and coercing its employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act.
Pursuant to notice, a hearing was held in Tiffin, Ohio, on June 24
and 25, 1940, before Earl S. Bellman, the Trial Examiner duly desig-
nated by the Board. The Board and the respondent were represented
by counsel and each of the labor organizations by an official ; all par-
ticipated in the hearing. Full opportunity to be heard , to examine
and cross-examine witnesses , and to introduce evidence bearing on the
issues was afforded all parties. At the opening of the hearing the
respondent filed its answer, the time for filing having been duly ex-
tended. The respondent's answer denied in substance that it had
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged *in any of the unfair labor practices alleged in the complaint
and averred, affirmatively, that the respondent "has always been ready
and willing to meet and bargain with its employees" and has bar-
.gained collectively" in meetings with the Unions. At the close of the
Board's case, Board counsel moved to strike from the complaint'certain
portions alleging that the respondent failed to grant certain confer-
ences to the Unions and to answer,certain communications from the
Unions. This motion was granted by the Taal Examiner. Board
counsel also moved to amend the pleadings to conform to the proof and
this motioii was also granted by the Trial Examiner. without objection,
by a ruling specifically exempting the respondent from any necessity
of filing amended pleadings. The respondent, at the close of the
Board's case and again at the close of the hearing, moved to dismiss
the complaint for failure of proof. Ruling on these motions was re-
served; the motions were denied by the Trial Examiner in his Inter-
mediate Report., During the course of the Bearing, the Trial Exam-
iner made various other rulings on motions and on objections to the
admission of evidence. The Board has reviewed all the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
After the hearing, the respondent filed a brief with the Trial Exam-
i ner. On August 28, 1940, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of See-
ti on 8 (1) and (5) and Section 2 (6) and (7) of the Act. He recom-
mended that the respondent cease and desist from engaging in such
unfair labor practices, and that, upon request, it bargain collectively
with the Unions.
Thereafter, the respondent filed a brief and exceptions to the Inter-
mediate Report. The Board has considered 'the respondent's excep-
tions to the Intermediate Report, and its brief in support thereof, and,
in -so far as the exceptions are inconsistent with the findings, con-
clusions, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent was incorporated under the laws of the State of Ohio
on November 3, 1938. Its principal office and plant are located at
Tiffin. Ohio, where it engages in the production and distribution of
equipment for power plants, elevating and conveying machinery, and
miscellaneous machinery and equipment. The respondent has three
WEBSTER MANUFACTURING, INC. 1341
subsidiaries: (1) Webster-Brinkley Co., a Washington corporation,
which purchases some products from the respondent; (2) Weller
Manufacturing Co., an Illinois corporation, which serves as a selling
.organization for the respondent ; and (3) Michigan City Foundry
& Machine Co., an Indiana corporation, the only function of which is
to hold certain real estate.
Only the Tiffin plant of the respondent is involved in this pro-
^oeedinb. At the Tiffin plant the respondent uses raw materials
amounting in'value to approximately $240,000 annually. The prui-
,cipal raw materials are steel and pig iron, of which about 40 percent.
'Come from outside of Ohio. The value of the finished products pro-
duced at the Tiffin plant amounts to approximately $800,000 annually,,
of which about 85 per cent is shipped to points outside the State of-
,Ohio. The respondent has seven sales offices outside the State of Ohio
and two sales offices in 'Ohio apart from its principal office.' It has
inanufacturer's representatives in St. Louis, Missouri, and Pittsburgh,
Pennsylvania. The respondent admits that it is engaged in commerce'
within the meaning of Section 2 (6) of the Act.
The respondent is the successor to Webster Manufacturing Com-
pany, hereinafter called the predecessor company, a corporation which
went into bankruptcy approximately 2 years before the respondent
took over its assets and the operation of the Tiffin plant on-January
18, 1939.
II. THE LABOR ORGANIZATIONS INVOLVED
The American Federation of Labor is an international labor organi-
zation with affiliates throughout the United States. -
International Association of Machinists, Local No. 1346, affiliated
with the A. F. L., is a labor organization admitting to membership
employees in the machine shop of the respondent's Tiffin plant. Local
No. 1346 has been in existence since it was chartered on February 3,
1938. Sometime prior to February 1938, a local of the International
Association of Machinists had been organized and had surrendered
its charter. -
International Molders' Union, Local No. 254, affiliated with the
A. F. L., is a labor organization admitting to membership employees
in the grey iron foundry and the malleable foundry of the respondent's
Tiffin plant. The Molders has maintained its organization since it
was chartered in 1906.
Federal Labor Union, No. 18581, chartered by the A. F. L. in 1933,
is a labor organization admitting to membership employees of the
sheet metal department at the Tiffin plant.
'The sales offices are located at New York City ; Buffalo, New York ; Philadelphia,
Pennsylvania ; Detroit, Michigan ; Chicago , Illinois ; Bloomington , Illinois ; Knoxville,
Tennessee ; Cleveland , Ohio; and Cincinnati, Ohio
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. History of labor relations at the Tiffin. plant
The three Unions herein have sought to negotiate jointly with the
management since 1937, although they had previously bargained on a
separate basis. Local No. 1346 of the I . A. M. was chartered in Feb-
ruary 1938 after another local of the same organization had surrendered
its charter . The record does not show what arrangement existed-be-
tween the three Unions for joint representation during bargaining
negotiations prior to the formation of Local No . 1346 . After that
time, however , each of the Unions 'chose three representatives to-form
a joint bargaining committee . The nine coimllitteemen , thus chosen,
together with district representatives of the Molders, the I. A. M., and
the A. F. L., acted as a joint negotiating committee in dealing first
with the predecessor company and later with the respondent. There
is no evidence that any labor organization other than the three
'
Unions
involved herein has ever sought to represent employees at the plant
either before or after the respondent took over operations.
On March 17, 1938, Kenneth H. Waterfield , as trustee in bankruptcy
of the predecessor company, sent a letter to the financial secretary
of the Federal Union recognizing the three local Unions "as the
exclusive bargaining agency for the purpose of negotiating conditions
of employment on behalf of all the employees of the undersigned,
as trustee , employed in the sheet metal department, foundry depart-
ment and machine shop department ..." of the Tiffin plant 2 This
recognition covered all employees in the sheet metal department, the
grey iron foundry, the malleable foundry, and the machine shop.
On November 3, 1938, the respondent was organized and Waterfield
became its president and general manager. One Doemell3 served
as works manager or superintendent under Waterfield . About the
time the respondent took over the assets of the predecessor company
on January 18, 1939, President Waterfield became incapacitated due
to illness and Doemell assumedhis duties and became the active head
of the respondent until July 1939. In July John B. Nordholdt, Sr.,
became president and general - manager of the respondent . Doemell
was retained as plant superintendent under Nordholdt until August
1939 , when Doemell was succeeded by Milo Long as the superintendent
of the Tiffin plant under President Nordholdt. _
2 The "foundry department " referred to by Waterfield has two di%isions' the grey iron
foundry and the malleable foundry.
S Referred to in the respondent ' s trial brief and in the complaint , respectively , as Doemal
and Doemel
WEBSTER MANUFACTURING, INC. 1343
During the period when Doemell was in active charge of the re-
spondent's operations, the joint committee of the Unions submitted
a proposed contract and arrived at an understanding with Doemell
as to all of its terms with the exception of a clause providing for a
closed shop.4 No further negotiations took place until after Nord-
holdt became president and general manager.
2. The appropriate unit
The complaint alleges that all the production and maintenance
employees of the respondent at its Tiffin, Ohio, plant,, exclusive of
clerical employees, the sales force, engineers, and estimators, con-
stitute an appropriate unit. During the course of negotiations with
the Unions, the respondent raised no question as to the propriety of
the unit.6 In its answer it denied that the unit alleged in the com-
plaint 'was appropriate. It did not, however, propose any other
unit. In its brief submitted to the Trial Examiner after the hearing,
the respondent asserted for the first time that each department of the
plant constituted an appropriate unit.
The production and maintenance employees at the Tiffin plant are
employed in five main departments in addition to a miscellaneous
group of unclassified employees engaged in a variety of different
tasks related 'to production. The five main departments are the grey
iron foundry, the malleable foundry,'the machine shop, the sheet
metal shop, and' the chain department, all of which are housed in the
main building of the plant, with the exception of the grey iron foun-
dry which occupies a separate building on the plant premises. Un-
skilled employees are frequently transferred among the divisions of
the plant but skilled employees are not. All the employees work
under the same superintendent and all contribute to the finished
products produced.
Though the complaint alleges that all the production and main-
tenance employees constitute an appropriate unit, it is apparent that
the parties regarded the unit as one composed of the production and
maintenance employees in the machine shop, the sheet metal shop,
and the grey iron and malleable foundries. There is no evidence
'The Trial Examiner found that the understanding between Doemell and the Unions
constituted an oral agreement Whether or not an oral agreement was in fact reached
at that time is not material to the issues in this case. Accordingly, we make no finding
in that respect.
i The copies of the proposed agreement introduced in ei idence and the testimony of the
Unions' representatives indicated that they, also desired supervisory employees to be
excluded from the unit
6 The respondent in its trial brief admits that the question of the appropriate unit " 'appears
from the evidence not to have been directly raised in any of the negotiations between _
representatives of the three unions and the management and is presented only as a result
of the allegations of the complaint and the denial by the respondent in its answer "
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the miscellaneous employees or those in the chain department are
eligible to membership in the Unions involved in this case, or that the
Unions sought to represent them in negotiations with the respondent,
which began after Waterfield accorded the Unions exclusive recogni-
tion. Although the proposed contract which was discussed-with Doe-
mell and which provided the basis for all subsequent negotiations
between the Unions and the respondent contained a clause providing
for recognition of the Unions "as the sole bargaining agent for all
employees . . . exclusive of executives, supervisors, and office work-
ers," nevertheless, the schedule of wage rates set forth in the proposed
contract covered only employees in the sheet metal shop, machine
shop, grey iron foundry, and malleable foundry. Further, when dur-
ing the course of the negotiations with the respondent the Unions
believed that 'their right to exclusive recognition was being ques-
tioned,.they submitted the letter of Waterfield as proof of their claim.
As noted above, Waterfield's letter accorded the Unions recognition
as the exclusive bargaining agency of the employees in the sheet
metal, machinists, and foundry departments. If the Unions had
been seeking a unit composed of all the production and maintenance
employees, they obviously would not have relied upon Waterfield's
letter which by its very terms limited recognition to a unit narrower
in scope. This conclusion is further strengthened by the fact that
the proposed contract sought a unit of "all employees," and did not
expressly number the sales force, engineers, and estimators among
the groups to be excluded. The record is clear, however, that the
parties did not consider them as part of the unit, and the complaint
expressly excludes them.
It is apparent that the contract, in reciting that the unit for which
the Unions sought to be recognized comprised "all employees," was
loosely drafted and that the understanding both of the Unions and
the respondent during the entire course of the negotiations was that
the unit was limited to all the production and maintenance employees
in the sheet metal, machinists, and foundry departments.
,In view of the past dealings between the parties, and in the absence
of any evidence that other than sheet metal, machine shop, and found-
ry employees have ever been organized or are eligible to join or
have become members of the Unions herein, we find that all the pro-
duction and maintenance employees of the respondent at its Tiffin,
Ohio, plant, exclusive of supervisory employees, salesmen, engineers,
estimators, office and clerical employees, employees in the chain de-
partment, and miscellaneous employees, at all times material herein
constituted, and that they now constitute, a unit appropriate for the
purposes of collective bargaining, and that said unit will insure to
employees of the respondent the full benefit of their right to self-
WEBSTER MANUFACTURING, INC. 1345
organization and to collective bargaining and otherwise effectuate
the policies of the Act:
3. Representation by the Unions of a majority in the appropriate unit
Counsel for the respondent and for the Board stipulated at the
hearing that on March 20, 1940, there were•253 production and main-
tenance employees on the pay roll and 231 of them were employed
on that date. Of the 253 employees listed on the pay roll, 54 were
employed in the machine shop, 85 in the grey iron and malleable
foundries, and 57 in the sheet metal department, making a total of
196 employees in the appropriate unit. No fluctuations appear to
have occurred in the respondent's business or in the number of work-
ers employed during the period under consideration, either before or
after March 20, 1940. The respondent, in its brief filed after the
hearing, stated that the normal peak employment at the Tiffin plant,
including employees not considered within the appropriate unit, was
approximately 250 to 260 men.
A report by a Field Examiner of the Board, with respect to the
representation claims of the Unions, which was introduced at the
hearing, shows that prior to September 22, 1939, the Unions had
secured signed authorizations of 37 employees in the machine shop,
43 in the grey iron and malleable foundries, and 42 in the sheet metal
department, a total of 122 employees in the appropriate unit.'
The respondent did not seriously contest the fact that the Unions
represented a majority during the negotiations.a During and after
the hearing, however, it did question the Unions' status as the ex-
clusive representatives of the employees. It contended : (1) that the
7 These figures are given in the trial brief of the respondent and are substantially cor-
roborated by the testimony of the representatives of the Unions
s The report of the Field Examiner showed that the Unions had secured a total of 150
authorization cards Twenty of these, however were signed in April 1940 and have not,
therefore , been included in computing the majority. The testimony of the representatives
of the Unions disclosed that three employees included in the Field Lxaminer's report were
no longer employed by the respondent at the time of the hearing These, together with
five additional authorization cards which were undated and which , according to the testi-
mony , may have been signed in either April 1939 or April 1940, have likewise been ex-
cluded in arriving at the total number of employees who had designated the Unions as
their bargaining representatives prior to September 22, 1940 At the hearing counsel
for the respondent stated he was satisfied that the report of the Field Examiner was
correct and declined an opportunity offered by the Trial Examiner to check the Field Ex-
aminer s report against the authorization cards of the Unions which were available for
cross-examination
9In its brief filed after the hearing, the respondent for the first time proposed that
an election be held At no time during the course of negotiations, however, did it adsance
such a suggestion to the Unions Noidholdt's testimony concerning his iecognition of
the authority of the Unions was highly contradictory. In his last statement he declared
that, after having received a photostatic copy of Waterfield's letter according exclusive
recognition to the Unions, be told Roadley a conciliator from the United States Depart-
ment of Labor, at the meeting on March 15 that he was "not making an issue of that
now" , and that he did not raise the question when he later met the Unions on March 28
323428-42--86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees did not contemplate representation by a joint committee
when they signed cards authorizing only a particular labor organi-
zation to represent them; (2) that the Unions had not secured a ma-
jority because all of the employees who signed authorization cards
had not become members; and (3) that certain of the cards which
named Webster Manufacturing Company, the respondent' s prede-
cessor, rather than Webster Manufacturing Company, the respond-
ent, as the employing agency, did not authorize the Unions to repre-
sent the employees in negotiations with the present company.
The first contention of the respondent is predicated on the ground
that the authorization cards produced by the I. A. M. ' designated
only that labor organization as bargaining agent. The cards, how-
ever, identified the I. A. M. as an affiliate of the A. F. L. The authori-
zation cards of the Molders and the Federal Union designated the
A. F. L. as the bargaining agency. The objection the respondent thus
raises lies, if at all, not with the respondent, but with the employees.
The record is barren of evidence which would indicate that negotia-
tions, proceeded on any basis other than that intended by the- em-
ployees and their representatives. Nor is there evidence that any
employee withdrew his authorization for that or for any other reason.
Moreover, all of the authorizations were executed after the Unions
had instituted the practice of negotiating through a joint committee
and after they had received joint recognition by the trustee in bank-
ruptcy of the predecessor company. We find this contention of the
respondent to be without merit.
With respect to the second contention of the respondent, it is unim-
portant that some of the employees who' signed authorization cards
may not have become members of the Unions. Section 9 (a) of the
Act requires only that the employees designate a, representative for
the purposes of collective bargaining; it does not require the em-
ployees to become members of the labor organization so designated .10
We find this contention of the respondent also to be without merit.
With respect to the third contention of the respondent, the desig-
nation of the employer is descriptive of the person creating the agency
and does not limit the agency so created by reason of the fact that the
name of the corporate employer, has changed. All the authorization
cards were signed after November 3, 1938, the day on which the
respondent was incorporated. Moreover, there was a continuity of
11 See N. L. R. B, v. National Motor Bearing ' Co , 105 F. ( 2d) 052 (C. C. A. 9) enf'g as
mod. Matter of National Motor Bearing Company and International Union, United Auto-
mobile Workers of America, Local No. 76 , 5 N. L. R . B . 409; Matter of St. Joseph Stock
Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North' America,
Local Union No. 159, 2 N. L . R. B. 39, 44; Matter of Clifford M, DeKay, doing business
under the trade name and style of D & H Motor Freight Company and International
Brotherhood of Teamsters , Chauffeurs, Stablemen and Helpers of America, Local Union
^Vo 6 i9, 2 N L R B. 231, 237.
WEBSTER MANUFACTURING, INC. 1347
the employer-employee relationship. The evidence indicates that em-
ployees who had worked for the predecessor company were retained
and continued to work for the respondent. The authority' granted to
the Unions by the employees was not defeated by a change in name
or structure of the employer. It is clear that the employees intended
to continue to bargain in the same unit and by the same represent-
atives through whom they had bargained with the predecessor com-
pany. We likewise find this contention of the employer to be without
merit. Q
We find that prior to September 22, 1939, and at all times there-
after, the Unions, jointly, were the duly designated representative
of a majority of the respondent's employees in the appropriate unit
and pursuant to Section 9 (a) of the Act were the exclusive repre-
sentative of all the employees in such unit for the purposes of col-
lective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
4. The refusal to bargain
- The discussions between the Unions and Doemell occurred prior to
July 1939.11 John B. Nordholdt, Sr., became president and general
manager of the respondent on July 26, 1939. On August 17, 1939,
Milo Long succeeded Doemell as superintendent. During the fol-
lowing month Samuel R. Isard, a representative of the A. F. L. and
one of the members of the joint committee, wrote to Nordholdt re-
questing a conference. Nordholdt referred him to Long. On Sep-
tember 22, 1939, Long, Isard, and William R. McCourt, International
representative of the I. A. M., met in Long's office. A copy of the
proposed contract which had previously been discussed with Doemell
was produced and its terms explained to Long. Long declared he
had no authority to enter into an agreement and suggested that the
parties confer with Nordholdt. Accordingly, a further meeting was
arranged.
On November 3, 1939, Nordholdt -and Long met with John M.
Schmid, district representative of the I. Al. U., Isard, McCourt, and
the nine members of the joint shop committee of the Unions. A copy
of the proposed contract was again produced and presented to Nord-
holdt who stated that he did not consider himself bound by anything
Doemell had agreed to, and declared that he could not sign any
agreement. He requested time, however, to study the contract
presented by the Unions.
No further meetings were held until January 1940. On December
19, 1939, the Unions filed charges with the Board, alleging that the
11 See, supra, Section III, A, 1.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent had refused to bargain collectively. A Field Examiner
of the Board arranged a meeting on January 26, 1940. The repre-
sentatives of the Unions had not notified their respective shop com-
mittees and requested a postponement. A meeting arranged for the
middle or latter part of February was postponed because of the
illness of Nordholdt.
On March 5, 1940, the parties again conferred. The meeting began
in the morning and extended into the afternoon.. Nordholdt, Long,
McCourt, Isard, and the 'co inttee were present. Schmid was
absent during the morning session but appeared during the after-
noon. The meeting opened with a discussion of the agreement which
Nordholdt declared he could not accept. Instead, he offered the
following statement of policy as a counterproposal :
I
The Company recognizes the right of every employee to dis-
cuss with the management in any way he pleases matters affect-
ing his employment. He may discuss it personally or he may
appoint some other individual or committee or organization to
(1o it for him. We thus recognize the right of employes to
bargain collectively through representatives of their own
choosing and whom they may so authorize.
II
The Company will respect the rights of its employees under
the Wagner Act and otherwise , and the Company expects every
employe to respect the rights of every other employe and the
rights of the Company.
It is the right of every employe to join a labor union and it is
the right of the labor union to request giving preference to its
members,-and it is the right of the Company to refuse any such
request,-and each employe of the Company can be assured that
this Company will refuse any such request.
The Supreme Court of the United States held with respect
to the Wagner Act , in the case of NLRB vs . Jones and Laughlin
Steel Corporation decided April 12, 1937: -
"The Act does not compel agreements between employers and
employees . It does not compel any agreement whatever. It
does not prevent the employer from `refusing to make a col-
lective contract and hiring individuals on whatever terms' the
employer `may by unilateral action determine.' "
That is the law on that subject.
WEBSTER MANUFACTURING, INC. 1349
III
Each employe has the right to join or to refuse to join any
labor union, as he pleases.
IV
Each employe,in our plant is entitled to exercise his own inde-
pendence of judgment free from coercion from any source.
V
The Company recognizes that all employees shall retain the
right to seniority preference in employment. Such preferences
shall be determined on the length of service of the employe with
the Company and shall be subject to the employe's experience and
ability to perform his work, his efficiency, physical condition and
personal habits together with his record for satisfactory service.
The Unions, however, refused to accept the statement, and persuaded
Nordholdt to enter into a discussion of the contract. As a result,
each section of the contract was separately discussed. Nordholdt
agreed to accept some of the provisions, and requested that others be
used. lic parties (lid not arrive at an understanding, however,re ''
nth respect to a closed shop or a signed agreement. Nordholdt first
took the position that he ww,ould not sign any contract, whether or not
its terms were acceptable; but at the conclusion of the conference
he stated that' it would be necessary for him to refer the matter
to the respondent's board of directors. The representatives of the
Unions were thus informed for the first time that Nordholdt did not
have filial authority to consummate an agreement and would have to
submit the nuestion to the board of directors. When, during the
course of the meeting, Nordholdt stated he would meet at any time
with any group of employees or their representatives; the Unions'
representatives reminded him that they had previously been recog-
nized as the exclusive bargaining agency and were entitled to a con-
tinuance of that recognition. It was agreed that a photostatic copy
of Waterfield's letter according sole recognition to the Unions would
be forwarded to the respondent. It was agreed, also , that the repre-
sentatives of the Unions, rather than Nordholdt, would draft a revised
copy of the contract.
On March 7, 1940, the Unions sent the revised contract together
with a photostatic copy of Waterfield's letter, to Nordholdt. In the
meantime, the Unions, having been told by Nordholdt on March 5 that
lie did not have authority to conclude an agreement, enlisted the aid
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of David Roadley, a conciliator of the United States Department of
Labor, in an attempt to secure a meeting with the respondent's board of
directors. Roadley arrived in Tiffin in the late afternoon of March
15. Accompanied by Isard and Schmid, he called upon Nordholdt.
Nordholdt declared that he had not agreed to the changes in the re-
vised contract, that he would not accept any part of it, and that he
would embody his conception of the provisions that had been agreed
to in the form of a statement of policy. Isard and Schmid at first
objected, but finally agreed. They warned Nordholdt, however, that
they did not believe it would be accepted by the employees.
On March 28. Nordholdt and Long again met with Roadley, Isard,
McCourt, and the joint committee. Nordholdt presented the following
statement of policy :
To OUR FACTORY EDIPLOYEES :
Webster Manufacturing, Inc., in order that its employees and
their duly authorized representatives will be fully informed upon
the relationship existing between them and the company, wishes
to set forth its policy and p'resent practices as follows:
1
The Company recognizes the right of every employee to discuss
with the management in any way he pleases matters affecting his
employment. He may discuss it personally or he may appoint
some other individual or committee or organization to do it for
him. We thus recognize the right of employees to bargain col-
lectively thru representatives of their own choosing and whom
they may so authorize.
2
The company believes each employee has the right to join or
refrain from joining any organization or any union. No employee
is compelled to join any organization or union and no employee
will be discriminated against because of membership or nonmem-
bership in any lawful organization.
8
The company is endeavoring and will continue its endeavor
to provide continuous and steady employment.
4
Within its ability to do so the company will continue its present
practices affecting employees as'follows:
WEBSTER MANUFACTURING, INC. 1351
(a) Eight hours shall constitute a days work.
(b) Forty hours shall constitute a weeks work.
(c) Overtime at the rate of time and one-half shall be paid for
all work
1. In excess of eight hours in any one day and in excess of forty
hours in any one week.
2. For work done on Saturday afternoons.
5
All work performed on Sundays and on Legal Holidays shall
be paid for at the rate of double time (excepting those employees
whom [sic] from the nature of their work are required to be in
attendance on Saturday afternoons, Sundays and Holidays).
The following shall be considered Legal Holidays : New Years,
Memorial Day, Fourth of July, Labor Day, Thanksgiving Day
and Christmas Day.
6
The company will continuously review the existing individual
rates in order to correct inequalities and recognize increased
ability and efficiency.
7
The company recognizes that all employees shall obtain senior-
ity preference in employment. Such preferences shall be deter-
mined on the length of service of the employee with the company
plus his ability.
8
No employee shall lose his seniority rights by reason of sick-
ness or injury provided that the company shall be notified of
such sickness or injury within 24 hours after the employee
ceases to work, and, further, that such employee returns to work
immediately upon his recovery and within one year from, the
beginning of such sickness or injury.
Temporary leave of absence may be granted to employees
without affecting their seniority rights when such absence is
approved by the management.
Persons may be employed temporarily during the absence
of any regular employee on leave or because of sickness or injury
and may be dismissed upon the return of the regular employee.
9
When new classes of work shall be created the oldest em-
ployee having proficiency and ability shall be given preference
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in filling such new classes of work and there in [sic] his seniority
rights shall commence from the date of such employment on such
work. -
10
It is the intention of the company in 'establishing piece work
rates to make these rates such that an employee on piece work
should be able to' make at least 20% over and above the day rate.
Piece workers shall at no time be paid less than their hourly
rates.
WVEBSTER MANUFACTURING, INC.
McCourt testified that Nordholct declared he was going to give a
copy of the statement of policy to each of the employees and that
was as far as he would go in regard to collective bargaining. Nord-
holdt denied that he made this statement. Long testified that Nord-
holdt stated, "Gentlemen, this is what the company will agree on."
Kuhn, Bormuth, and Ranker, representatives of the Unions, corrob-
orated the testimony of McCourt. The Trial Examiner, who heard
and saw the witnesses, credited the testimony of the Unions' repre-
sentatives. We find that the statement attributed to Nordholdt was
made substantially as stated in the testimony of the representatives
of the Unions.
The statement of policy had already been printed when the parties
met, and copies were stacked at the time clocks in the plant for
distribution to the employees. Though Nordholdt denied that he
had refused to bargain further, he admitted that lie did not ask the
Unions to sign the statement of policy as an agreement nor ask them
to submit it to the members of the Unions for acceptance.
At a meeting of the Unions on the evening of March 28, the re-
spondent's statement of policy was submitted to the employees and
unanimously rejected. On the following morning, McCourt tele-
phoned Nordholdt and told him that the employees had rejected the
statement of policy. According to McCourt, Nordholdt merely stated
that that was all right. Nordholdt testified that he asked McCourt
if there was anything else he could do, and McCourt said there was
not. On rebuttal, McCourt denied that Nordholdt had asked if there
was anything else he could do. In view of the attitude assumed by
Nordholdt during the course of the negotiations as above related,
and,on the basis of the entire record, we find that the conversation
occurred substantially as stated in the testimony of McCourt.
On April 2 Schmid and McCourt called upon Fleek and Sneath,
two of the directors of the respondent, and requested them to call a
meeting of the board of directors for the purpose of arriving at an
agreement with the Unions. Fleek and Sneath refused to do so,
AVEBSTER \IANUI ACTURING, INC. 1353
declaring that the directors had employed Nordholdt as general
manager and that they did not wish to interfere . On May 21, 1940,
the Unions filed an amended charge, alleging that the respondent
had refused to bargain collectively.
From the above recital of facts, it is clear that the respondent
failed to bargain collectively within the meaning of the Act. While
an employer is under no duty to accede to the demands collectively
presented by his employees, he must afford them an opportunity to
meet and negotiate with representatives of the management who can
effectively speak for and commit the employer to the terms of whatever
agreement may be reached, if accord is possible.12 The respondent in
this case did not afford its employees such an opportunity. Instead,
it resorted to a technique of confusion accompanied by evasion
and delay. When the Unions first wrote to President Nordholdt,
and requested a conference, they were referred to Superintendent
Long; Long in turn referred them back to Norclholclt; Nord-
holdt ostensibly began to bargain, but, in the midst of negotiations,
disclaimed final authority and stated that such authority rested only
with the board of directors; and, finally, the directors, when ap-
proached, declared in effect that the matter rested with Nordholdt.
At no point during the negotiations were the Unions certain that
they were dealing with a spokesman of the management who was
empowered- to speak authoritatively or to act effectively ; at no time
were they assured that the representatives of the respondent with
whom they conferred could do more than voice approval or dis-
approval; in no instance were they permitted to believe that an
understanding , if reached, would be concluded in an effective and bind-
ing agreement . Such a course of conduct does not meet the obli-
gations imposed upon an employer to bargain collectively in good
faith.
If, as Nordholdt maintained, ultimate authority to approve and
to enter into an agreement rested with the respondent's directors, the
respondent was derelict in its duty imposed by the Act in failing and
refusing to give the represenatives of the employees an opportunity
to meet with and present their demands to the directors; if, on the
other hand, Nordholdt was actually empowered to conclude an agree-
ment with the Unions, his refusal to do so and his attempt to evade
responsibility by referring the Unions to the directors was an obvious
subterfuge and constituted a refusal to bargain. - -
" The respondent in its trial brief contends that the sole point of disagreement between
itself'and the Unions concerned the question of a closed shop and that the respondent
"has the absolute right to refuse and to continue to refuse to grant a closed shop to its
employees ." The validity of the respondent 's position as thus stated is not in issue since
it is clear from the record that the respondent never refused to grant a closed shop but
merely assumed an equivocal position with respect to such a-demand when made
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, the position assumed by Nordholdt with respect to
signing an agreement made genuine collective bargaining an impos-
sibility. The Unions were never assured that an understanding, if
reached, would be formalized in a written and signed agreement to
which they were entitled and upon which they could rely. By con-
stantly interjecting the issue of a signed agreement; by shifting his
position from an outright refusal to sign a contract to one that he
lacked authority to do so but that he would refer the matter to the
board of directors, which was never done; by adhering to a precon-
ceived determination to avoid a signed agreement in any event, and
issuing unilateral statements of policy in an attempt to eliminate the
possibility of a signed agreement, Nordholdt reduced the successive
conferences to a series of empty and useless discussions. ,
In addition to the foregoing, the respondent by presenting the
statement of policy' to its employees on March 28, 1940, and stating
that it would go no further with respect to collective bargaining,
committed a violation of Section 8 (5) of the Act. With this act,
further bargaining between the parties ceased. The statement of
policy was a unilateral declaration which ignored the existence of
the Unions and was addressed directly to the employees. It em=
bodied, in substance, a number of matters which were contained in
the agreement that had been prepared by the Unions, but it failed to
grant recognition to the Unions and, since it was subject to change
at the respondent's will, it did not, therefore, constitute an effective,
binding agreement to which the employees were entitled under the
Act. We'have held ,in numerous cases that the presentation to em-
ployees of similar statements of policy, at a; time when therepre-
sentatives of the employees are seeking a collective agreement,
constitutes a violation of the Act.13
We find that on September 22, 1939, November 3, 1939, March 5,
1940, March 15, 1940, and March 28, 1940, and thereafter, the re-
spondent failed and refused to bargain collectively with the Unions
as the exclusive representative of its employees in the appropriate
bargaining unit 14 described in Section III, B, above, in respect to
rates of pay, wages, hours of employment, and other conditions of
13 See , e g., Matter of Westinghouse Electric and Manufacturing Company and its sub-
sidiaries, Westinghouse X-Ray Company, Inc. and The Bryant Electric Company and
United Electrical, Radio and Machine Workers of America and its Locals Nos 601, 202,
1207, 107, 111 , 130, 1105, 1412 , and 209, 22 N. L. R. B . 147, and cases there cited
n The variation between the allegations of the complaint and our findings with respect
to the appropriate unit is not material to the issue of the respondent's refusal to bargain
collectively since, as we have found above, the respondent 's refusal to bargain was not'
based on that ground At no time during the entire course of the negotiations did the
respondent question the appropriateness of the unit . Furthermore, any variation which
might otherwise have existed in that respect was cured when motion of counsel for the
Board to amend the pleadings to conform to the proof adduee'd'at the hearing was granted
by the Trial Examiner. ,
WEBSTER MANUFACTURING, INC. 1355
employment, and- that it thereby interfered with, restrained, . and
coerced its employees- in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the 'sev-
eral States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REDIEDY
Having found that the respondent has engaged in unfair labor
practices, we - shall- order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act, and to restore as nearly as possible the conditions which ex-
isted prior to the commission of the unfair labor practices.
We have found that the respondent has -refused to bargain collec-
tively with the Unions. We shall order it, upon request, to bargain
collectively with the Unions as the exclusive representative of its
employees within the unit which we have found to be appropriate.
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. The American Federation of Labor, International Association
of Machinists, Local No. 1346, International Molders' Union, Local
No. 254, and Federal Labor Union, No. 18581, are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. All the production and maintenance employees at the respond-
ent's Tiffin, Ohio, plant, exclusive of supervisory employees, sales-
men, engineers, estimators, office and clerical employees, employees
in the chain department, and miscellaneous employees, at all times
material herein constituted and they now constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act.
3. The American Federation of Labor, International Association
of Machinists, Local No. 1346, International Molders' Union, Local
No. 254, and Federal Labor Union, No. 18581, jointly, are and have
been at all times since April 1939, the exclusive representative of all
the employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By refusing and continuing to refuse to bargain collectively
with the American Federation of Labor, International Association of
Machinists , Local No. 1346 , International Molders' Union , Local No.
254, and Federal Labor Union , No. 18581, jointly , as the exclusive
representative of its employees in the appropriate unit, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (5) of the Act.
5. By interfering with, restraining , and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce , within the meaning of Section 2 ( 6) and (7)
of the Act.
ORDER
i
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Webster Manufacturing, Inc., Tiffin; Ohio, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with the American Federa-
l ion of Labor, International Association of Machinists, Local No.
1346, International Molders' Union, Local No. 254, and - Federal
Labor Union, No. 18581, jointly, as the, exclusive representative of
all the production- and' maintenance employees, at its Tiffin, Ohio,
plant, exclusive of supervisory employees, salesmen, engineers, esti-
mators, office and clerical employees, employees in the chain depart-
ment, and miscellaneous employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization. to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid grid protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with- the American Fed-
eration of Labor, International Association of Machinists, Local No.
1346, International Molders' Union, Local No. 254, and Federal
Labor Union, No. 18581, jointly, as the exclusive representative of
all its production and maintenance employees at its Tiffin, Ohio,
plant, exclusive of supervisory employees, salesmen, engineers, esti-
WEBSTER MANUFACTURING, INC. 1357
mnators, office and clerical employees, employees in the chain depart-
ment, and miscellaneous employees, respecting wages, hours of 'em-
ployment, and other conditions of employment;
(b) Post immediately in conspicuous places in each department
of its Tiffin, Ohio, plant, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees stating that respondent will not engage in the activities
from which it is ordered to cease and desist as set forth in para-
graphs 1 (a) and (b) of this Order and that it will take the affirma-
tive action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Eighth Region in writ-
ing within ten (10) days from the receipt of this Order what steps
the respondent has taken to comply herewith.