Adler Metal Products Corp.

National Labor Relations Board - Board Decisions

Aug 30, 1948

79 N.L.R.B. 219 (N.L.R.B. 1948)

In the flatter of ADLER METAL PRODUCTS CORP. and UNITED STEEL-
WORKERS OF AMERICA, CIO
Case No. 14-C-1238.-Decided August 30, 1948
DECISION
AND
ORDER
On September 29, 1947, Trial Examiner A. Bruce Hunt 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
Intermediate Report attached hereto., Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief .2
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed.- The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions and brief of the Respondent, and the entire record in the case,
and hereby adopts the findings and conclusions of the Trial Examiner,
.with the exception 3 that in finding that the Respondent violated Sec-
tion 8 (5) of the Act, we do not rely upon any failure of the Respondent
to make a written counterproposal, in the nature of a concession, to
the terms and conditions of employment proposed by the Union .4
'Those provisions of Section 8 (1) and (5) of the National Labor Relations Act, which
the Trial Examiner found were violated herein , are continued in Section 8 (a) (1) and
Section 8 ( a) (5) of the Act, as amended by the Labor Management Relations Act, 1947.
2Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-man panel consisting
of the undersigned Board Members [ Houston, Reynolds , and Gray].
'The Trial Examiner 's finding and conclusion of law with respect to the appropriate
-unit are hereby amended by deleting the words "any other supervisory employees with
authority to lure , promote, discharge, discipline , or otherwise effect changes in the status
of employees , or effectively recommend such action ," and by substituting therefor the words
"any other supervisors as defined in the Act " As so amended , the Trial Examiner's unit
Ending and conclusion of law are hereby approved
' See Section 8 (d) of the amended Act which provides in pertinent part " . . but
such obligation [the duty to bargain collectively ] does not compel either party to agree to
a proposal or require the making of a concession
79 N. L. R. B., No-. -33.
219
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
The recommendations of the Trial Examiner are hereby adopted in-
sofar as they are consistent with the Order hereinafter set forth.
The Union has not complied with the provisions of Section 9 (f)
and (h) of the amended Act. The requirement that the Respondent
bargain with the Union will therefore be conditioned upon compliance
by the latter with these provisions within thirty (30) days from the
date of the Order herein.'
ORDER
Upon the entire record in the 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, Adler Metal
Products Corporation, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Steelworkers of
America, CIO, if and when said labor organization shall have com-
plied, within thirty (30) days from the date of this Order, with Sec-
tion 9 (f) and (h) of the Act, as amended, as the exclusive bargaining
representative of the Respondent's production employees at its St.
Louis, Missouri, plant, excluding clerical employees, foremen, the
superintendent, and any other supervisors as defined in the amended
Act;
(b) In any other manner interfering with the efforts of United
Steelworkers of America, CIO, to negotiate for, or to represent, the
employees in the aforesaid bargaining unit as their exclusive bargain-
ing agent, if and when said labor organization has complied with the
filing requirements of the amended Act, as hereinabove set forth.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, and upon, compliance by United Steelworkers
of America, CIO, with the filing requirements of the Act, as amended,
in the manner set forth above, bargain collectively with United Steel-
workers of America, CIO, as the exclusive representative of the em-
ployees described in paragraph 1 (a) of this Order, with respect to
rates of pay, wages, hours of employment and other conditions of em-
ployment, and, if an understanding is reached, embody such under-
standing in a signed agreement;
(b) Post at its St. Louis, Missouri, plant copies of the notice at-
tached hereto and marked "Appendix A." e Copies of said notice,
Matter of Marshall and Bruce Company, 75 N L. R. B. 90
In the event that this order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted before the words "A DECISION AND ORDER," the words "DECREE
OF THE'UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING."
ADLER METAL PRODUCTS CORP. 221
to be furnished by the Regional Director for the Fourteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained by it for at least sixty (60) consecutive days thereafter in con=
spicuous 'places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material; and
(c) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of the receipt of this
Order, and again within ten (10) days from the future date, if any,
on which the Respondent is officially notified that United Steelworkers
of America, CIO, has met the conditions hereinabove set forth, what
steps the Respondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relatioiis
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 UNITED STEEL-
WORKERS OF AMERICA, CIO, as the exclusive representative of all
employees in the bargaining unit described below with respect to
rates of pay, wages, hours of employment or other conditions of
employment, and, if an understanding is reached, embody such,
understanding in a signed agreement; provided that such labor
organization complies within thirty (30) days from the date of
the aforesaid Order of the Board, with Section 9 (f) and (h) of
the National Labor Relations Act, as amende'd'. The Bargaining
unit is:
All production employees at the St. Louis, Missouri, plant,
excluding clerical employees, foremen, the superintendent
and any other supervisors as defined in the amended Act.
WE WILL NOT in any manner interfere with the efforts-of UNITED
STEELWORKERS, CIO, to negotiate for or represent employees of
the aforesaid bargaining unit; provided said labor organization,
within thirty (30) daysrfrom the date of the aforesaid Order of
the Board, complies with Section 9 (f) and (h) ^of the National
Labor Relations Act, a's amended.
ADLER METAL PRODUCTS CORP.,
Employer.
Dated-------------------- By--------------------------------
(Representative ) ( Title)
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 clays from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Clarence A Meter, for the Board
Mr. Meyer Blocher, of St. Louis, Mo., for the respondent.
STATEMENT OF THE CASE
Upon a charge duly filed by United Steelworkers of America, CIO. herein called
the Union, the National -Labor Relations Board, herein called the Board, by the
Regional Director for the Fourteenth Region ( St. Louis, Missouri ), issued its
complaint dated May 7, 1947, against Adler Metal Products Corp, St. Louis,
Missouri, herein called the 'respondent, alleging that the respondent had'
gaged 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 com-
plaint, together with notice of hearing thereon, were duly served upon the
respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that on-August-21, 1946, and at all, times thereafter, the respondent refused to
bargain collectively with the Union as the exclusive representative of its em-
ployees in an appropriate unit, althoukh a majority'of said employees had desig-
nated the Union as their representative for- such purposes. On May 15, 1947,
the respondent filed its answer, admitting certain allegations of the complaint
concerning its corporate- structure and business activities, but denying that it
had engaged in unfair labor practices . In addition, the answer alleges, inter
alia, that (1) respondent "has at all times been willing and is now willing to
bargain collectively with the Union," (2) the Union submitted a proposed con-
tract to the respondent and thereafter "refused to discuss the terms thereof with
Respondent and demanded that it be signed or else," and (3) the Union's ma-
jority status, which had been established in an election conducted by the Board,
was lost by reason of a large turn-over in employment, and that the respondent
"requested of the Union information as to whether it represented the employees
then in the employ of Respondent at the time of the submission of said [proposed],
contract, which request the Union refused"
Pursuant to notice, a hearing was held at St Louis, Missouri, on July 1 and 2,
1947, before the undersigned, the 'Trial Examiner designated by ,the Chief Trial
Examiner. The Board and the respondent were represented by counsel, and
both participated in the hearing Full opportunity to he heard. to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues was
afforded both parties. At the close of the Board's case, counsel for the respondent
moved that the complaint be dismissed on the ground that the evidence 'was in-
adequate to sustain a finding of unfair labor practices, and this motion was denied
by ,the undersigned. The motion was renewed at the close of the hearing, and,
was tfieu taken under advisement by the undersigned. It is hereby denied.
Counsel for the Board moved to conform the pleadings to the proof as to formal
matters, and this'motion was granted without, objection After the introduction'
of all the evidence, counsel for the Board; and the respondent presented oral
argument which was,included in the transcript of the hearing The parties did
ADLER METAL PRODUCTS CORP . 223
not avail themselves of an opportunity to file briefs for consideration by the
undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
rINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a Missouri corporation, has its principal office and place of.
business in St. Louis, where it is engaged in the manufacture, sale and distribu-
tion of metal office furniture and fixtures. During 1946 the respondent purchased
raw materials valued in excess of $30.000, of which more than 60 percent was
shipped to the plant in St. Louis from points outside Missouri. During the same
year, the respondent manufactured finished products valued in excess of $100,000. -
Certain of these products, amounting to more than $2,400 in value, were shipped
by the respondent to points outside Missouri, and the balance thereof, exceeding
$98,000 in value, were sold by the respondent to American Metal Products Cor-
poration in St. Louis, which corporation sold and delivered more than 90 per-
cent of such products to points outside Missouri.
The respondent concedes, and the undersigned finds, that it is engaged in com-
merce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization ,admitting to membership employees of
the respondent -
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
n
On November 26, 1945, the Union filed a petition in Case No. 14-R-1350.' A.
hearing was held thereon, and on April 15, 1946, the Board issued a Decision
and Direction of Election in which it found an appropriate unit as follows: "all
production employees of the Company at its St. Louis, Missouri, plant excluding
clerical employees, foremen, the superintendent and any other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action . .
The parties raise no issue respecting this determination, and the undersigned
finds that said employees constitute a -unit appropriate for the purposes of col-
lective bargaining and that such unit insures to employees of the respondent the
full benefit of their right to self-organization and to collective bargaining and
otherwise effectuates the policies of the Act.,
B. Representation by the Union of a majority in the'api ropriate unit
On July 9, 1946, an election was held in the representation proceeding men-
tioned above. The vote was 14 to 4 in favor of the Union, and on August 6, 1946,
1 Matter of Adler Metal Products Corp. and United Steelworkers of America, C. I. 0 ,
67 N. L. R. B. 328.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board issued a Supplemental Decision and Certification of Representatives.
certifying the Union as the exclusive representative of-the employees in the
appropriate unit.
The undersigned finds that on August 6, 1946, and at all times thereafter,' the
Union was the duly designated representative of a majority of the employees in
the appropriate unit and, pursuant to Section 9 (a) of the Act, was the exclusive
representative-of all employees in such unit for the purposes of collective bar-
gaining in respect to rates of pay, wages, hours of employment, and other,con-
ditions of employment. -
0. The refusal to bargain
1. The facts
On August 8, 1946, 2 clays after its certification, the Union mailed to the
respondent a letter requesting a bargaining conference. Thereafter, repre-
sentatives of the Union and the respondent met at the plant once each month
through'November, and approximately 3 hours were devoted to discussions on
each occasion. No progress was made toward agreement on any terms or con-
ditions of employment, however, and the Board contends that the respondent
failed and refused to bargain in good faith. We shall examine the events during
those ,months.-,
On August 21, the first of the conferences was held. Jack Adler, the respondent's
president, and Robert McVay and Fred Otten, representatives of the Union, were
present. In addition, three employees named Klosterman, Elder and Nappier,
who were members of the Union's plant committee, were called from their work
to participate in a portion of the conference. The conversation was generally
about conditions in the plant, with specific reference to the matter of wages. The
Union requested a wage increase, but no particular amount was suggested, and
the respondent took the position that it could not afford to grant the request.
Adler stated that there had been a great turn-over in employees, who were largely
unskilled, and that many employees were "shifty" and suffered from "war plant
fatigue," with the result that the respondent's production costs were prohibitive
and the existing wage rates more than compensated the employees for the amount
of goods produced. To this argument the Union replied that the respondent's
difficulty in obtaining and retaining employees was due principally to relatively
low hourly rates of pay. The respondent stated that it was unable to pay the
wage rates then being paid by other employers, that its operations had been
suspended during the war years and had been resumed recently, and that it did
not know whether it would be able to continue in business. The Union then ex-
pressed a--willingness to enter into a contract for a period as low as 6 or 3 months.
The respondent argued, however, that production should be increased before
wages, and stated that the difficulties involved in its business made it question-
able whether any sort of contract would be suitable. The conference terminated
without agreement on any provision of a contract and, indeed, without reference
to specific wage figures. I ,
On September 16, the second.meeting of Adler, McVay, and Ottent took` place, .
but unlike the first meeting, no.employees participated. The representatives dis-
cussed matters which had been considered af-the earlier meeting, such as the
respondent's 'difficulties in operating the plant, the failure of employees to re=
main on'the respondent's pay roll, and Adler's position that he did not believe
2 As set forth in its answer , and as discussed below, the respondent asserts that the
turn-over in its employees resulted in it loss of the Union 's majority status.
ADLER METAL PRODUCTS CORP . 225
a contract should be entered into at that time. Adler then proposed that the
Union recruit employees, saying, so he testified, that if the Union did so, it
"wouldn't have to organize these men" and that the respondent "would be more
anxious to sign perhaps a closed shop contract with them if they staffed our
shop . . It was Adler's contention that the Union knew the types of em-
ployees needed by the respondent, and should be able to recruit employees who
would remain, but the Union's representatives replied that the Union did not have
a hiring hall and was not equipped to undertake the proposition, particularly
since there had been no mutual understanding on wage rates. During the con-
ference, Adler took the position that the respondent's obligation to bargain did
not include an obligation to sign an agreement, if reached, and that the great
turn-over in employees had resulted in a loss of the Union's majority status. It
was his contention that "only a handful" of the individuals within the appro-
priate unit at the time of the election remained as employees, and that he would
consider a contract by which the Union would be recognized as the representa-
tive of its members only. McVay and Otten insisted that the Union was entitled
to recognition as the representative of all employees in the unit. The meeting
terminated with the understanding that the Union would submit a written pro-
posed contract to the respondent.
Following the September conference, the Union prepared a proposed agree-
ment and, on October 1, mailed it to the respondent. On an uncertain date within
the next 2 weeks, Adler, McVay, and Otten met for their third conference. Adler
stated that he had looked at the Union's proposed contract, that it was not
"workable" at the plant, and that he could not afford to pay the wage rates
set forth therein. Representatives of the Union replied that the suggested wages
would attract employees needed by the respondent, and again Adler proposed
that the Union undertake to recruit them, telling McVay and Otten that in such
event the Union would "virtually have a closed shop " Adler stated also that he
"might make a slight advance" in wages, but he did not state the terms of an
agreement which he would sign if the Union undertook to carry out his pro-
posal.
During the course of this meeting, the representatives discussed the possi-
bility of a strike by the Union. According to Adler, it was the position of the
Union's representatives that any modification of their proposed contract would
be unacceptable and that the respondent must sign the document or face the
likelihood of a strike. McVay and Otten denied, however, that they insisted
upon an acceptance of their proposal without modification and that they
threatened a strike. According to their testimony, the subject of a strike was
mentioned first by Adler, who challenged them to call a strike, saying that
there were insufficient Union members in the plant to make it effective and that
the members of another labor organization, affiliated with the American Fed-
eration of Labor, would cross any picket line established by the Union. The un-
dersigned is unable to accept the testimony of Adler that the Union threatened
to strike unless its proposed contract was accepted in toto. Not only is such
testimony disputed by that of McVay and Often, but additional testimony b}
Adler himself lends weight to the version related by the Union's representatives.
Adler testified that at "several of these meetings I have asked them, why then
didn't pu]1 the men out on strike . . [and] if it wasn't a fact they didn't have
enough members back there to strike." Moreover, Adler also testified that at a
subsequent meeting in the Regional Office of the Board he again raised the
question. Finally, as set forth below, the Union's later effort to reach agree-
226 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
ment with the respondent by obtaining the aid of the U. S. Conciliation Service,
and also to obtain a counterproposal from the respondent, demonstrate that it
was not the Union's position that a modification of its proposed contract would
be unacceptable. Under these circumstances, the undersigned finds that the
respondent, without provocation, challenged the Union to strike.'
During the October meeting, and at other times, Adler contended to the
Union's representatives that the Union had lost its majority status by reason
of the turn-over in employees. As a witness, however, he denied that he took
the position that he was thereby absolved of the duty to bargain collectively.
Instead, it was his position, so he testified, that the respondent had "nothing to
lose by signing a contract with them that doesn't tie us down," and that there
-was "no reason " why the respondent should not sign a contract after it had
4obtained "production" and "capable employees." He testified further that at
-the October meeting he informed the representatives of the Union that lie
"might" sign a contract if "compelled" to do so, that '-perhaps" he would sign
"'if that is what the National Labor Relations Board insisted we do," and that
-he "might" enter into a contract like that which the parties had executed in
1938 with "perhaps" an increase in wages of 5 cents per hour. His position was
indefinite, however, and he refused to make a written counterproposal. As a
consequence, the October meeting was fruitless, and the representatives of the
Union requested the aid of the U. S. Conciliation Service.
On October 16, subsequent to the meeting above discussed, a group of seven
employees called upon Adler and demanded a wage increase of 10 cents per hour.
Adler testified that the employees (lid not state whether they were requesting
individual or general wage increases, and that he did not determine the fact.
He testified also that he told the group that he "planned on making" an increase
of 5 cents per hour and that it would be made effective "very soon," but the
employees stated that the amount was inadequate and thereupon quit their
employment. Adler, without notice to the Union, made the increase effective
during the next pay period and applied it to all employees within the appropriate
unit. According to counsel for the respondent, the wage increase of 5 cents
per hour was an amount sufficient to exceed certain wage rates set forth in the
Union's proposed contract'
On November 13, the representatives of the Union and the respondent held
their final meeting. Present were William Hale, a Commissioner of Conciliation
of the Department of Labor, Adler, McVay, and Otten Adler informed the
other individuals that the group of seven employees had called upon him,' that
he had offered a wage increase which they declined, and that they had resigned.
Adler termed the resignations a strike on the part of the seven employees and,
as he testified, he "distinctly set out that they [McVay and Otten] didn't have
8 A contract between the respondent and the Union , entered into in 1938 and mentioned
below, was executed only after the employees had engaged in a strike
4 According to the respondent, Adler was under the impression that these seven employees
constituted a committee from the Union and that in dealing with them he was bargaining
collectively with the Union. Adler's testimony does not support this contention. Thus,
although one person in the group had been present as a member of the Union 's plant com-
mittee at the first meeting of the respondent 's and Union ' s representatives in August, there
is no reliable evidence that any of the seven employees stated to Adler that they repre-
sented the Union or any other employees. Moreover, Adler's testimony that several of the
employees , upon his inquiry , identified themselves as officers in the Union is hardly credible
in view of his later testimony that he was not certain that the seven employees were union
members and that he assumed "they may have been" because one of them attended the
August meeting
e The Union 's representatives had been unaware of the event , and they so informed Adler.
ADLER METAL PRODUCTS CORP . 227
much of a union left because these men [the group of 7] had left." Although
Adler denied that he refused to recognize the Union except as the representative
of its members only, it is clear from the reliable testimony of McVay and Often,
and the conduct of Adler himself, that it was Adler's position that the turn-over
in employees and the resignations of the group of seven had served to nullify
the Board's certification of the Union. Adler rejected the suggestion of Com-
missioner Hale that a wage increase be granted, as well as the request of the
Union's representatives that their proposed contract be considered paragraph
by paragraph . He did suggest , however, that the Union recruit needed em-
ployees, after which he would execute a union shop contract. The conference
then terminated.
On November 27, McVay wrote to the respondent, requesting that Adler
reduce to writing his proposal that a union shop agreement be executed if the
Union would agree to recruit employees. In the letter McVay stated that Adler's
proposal "needs to be put in writing so the Union can determine how binding
the Company intends such provision to be and to what extent the Union will
be required to exert its present facilities in order to carry out such a condition in
one of its contracts." In addition, McVay asked that Adler make a counter-
proposal to the written proposal previously made by the Union. Adler, however,
failed to respond to McVay's letter. His reasons for the failure, so lie testified,
were, first that he had a shortage of stenographic help, and second, he had
already made his position known to the Union at one of the meetings in which
be stated that he «;ould "perhaps" agree to sign a contract like the parties had
executed in 11.3S, with "maybe a general wage increase of five cents an hour .. .
and maybe one or two other things . . .
There were no further bargaining conferences or correspondence between the
respondent and the Union.
2. Conclusions
The issue here is whether the respondent bargained in good faith with repre-
sentatives of the Union. Counsel for the respondent argues that "many things
were discussed" at the several conferences, that the failure to reach an agree-
ment was due to an impasse, and that it was pointless for the respondent to reply
to the Union's letter of November 27 On the other hand, the Board Attorney
asserts that an impasse could not have existed because the respondent failed
to disclose the type of agreement which it would approve, while the Union re-
mained willing to consider any suggested modifications of its proposed contract.
The undersigned has considered carefully the evidence respecting each of the
conferences between the respondent and the Union. These conferences num-
bered four, and each extended over a period of 3 hours. True, "many things
were discussed," as the respondent's counsel says, but progress was not made.
The reason therefor is to be found in the respondent's course of conduct, which
demonstrates an unmistakeable effort to escape genuine collective bargaining.
Thus, Adler testified that he opposed a contract which would "tie us down," and
more than once he argued to McVay and Otten that the time was not appro-
priate for execution of a collective labor agreement.' As the Board has said,
such conduct on the part of an employer is indicative of bad faith.'
This contention is somewhat like that advanced unsuccessfully by the respondent in the
representation case cited in footnote 1. There the Board rejected the contention that "an
election would be inappropriate at the present time because . . [the respondent] does
not have a full working complement, and because there has been a serious turn-over among
Its employees . . "
7 Matter of Tomlinson o f High Point, Inc . 74 N L R B 681
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A second and equally persuasive factor in determining whether the respondent
bargained in good faith is the testimony of Adler that on several occasions he
questioned the Union's majority status, asserting that employees in the appropri-
ate unit at the time of the election on July 9 had terminated their employment,
and suggesting that the Union "pull the men out on strike."' By Adler's own
testimony, he raised, the point at all meetings other than the first, informing the
Union's representatives that notwithstanding the possible loss of its majority
status, the respondent "perhaps would sign a contract" if the Board "insisted"
and that "I told them that if I was compelled to sign a contract I might ..."
In the undersigned 's opinion , the fact that Adler repeatedly questioned the
Union's majority status and stated that he would sign an agreement when com-
pelled to do so, under the circumstances present here, do not paint a picture of an
employer seeking to deal in good faith with the statutory representative of his
employees. On the contrary, these factors are indicative of an intent to inject
an extraneous issue which would serve to frustrate the Union's effort to bargain
collectively s
Certain additional factors point even more strongly to a determination on the
part of the respondent to avoid its duty to bargain with the Union. For instance,
Adler refused to make his position clear to the Union by placing in writing a
counterproposal embodying the terms and conditions of employment to which he
would agree.30 A perusal of the events set forth above shows that the representa-
tives of the Union, who originally rejected Adler's proposal that they undertake
to staff the plant, changed their position and sought to explore the possibilities
of agreement on the proposition Here was an instance where the respondent
for once had made a rather definite proposal, and the Union asked in its letter
of November 27 for a statement of details. Adler, however, ignored the request,
and thereby evaded again the possibility of agreement with the Union. His
failure to offer a counterproposal, he asserts, was because he had informed McVay
and Otten earlier that if they presented a document along the lines of the 1935
agreement the respondent "perhaps" would have executed it with some modifica-
tions. But it was not the obligation of the Union to guess the provisions which
would be acceptable to Adler ; instead, it was Adler's duty to clear the atmosphere
by making his position known to the Union's representatives, and his failure to
place in writing the type of document which he asserts that he "perhaps" would
have approved must be interpreted as an unwillingness to follow a route that
8 Adler testified that he did not know to what extent the Union had recruited members
from among the persons hired subsequent to the election and that his claun of a loss of ma-
jority status was based upon the terminations of employment by individuals who were eli-
gible to vote in the election At the hearing the respondent appeared not to contend seriously
that it was no longer obligated to bargain with the Union because of the turn-over, and in
its answer it stated that "it has at all times been willing and is now willing to bargain
collectively , . In any event, the -law is well established that "administrative
expediency and stable labor relations require that reasonable durability be accorded to
Board determinations based upon the results of secret elections, and that the choice of a
majority recently expressed therein not be subject to revocation with every shift in senti-
ment or personnel ." Matter of Worcester Woolen Mills Corporation , 74 N. L. R B 1071,
and cases cited therein.
9 Matter of Tomlinson of High Point, Inc., footnote 7.
10 "But , agreement by way of compromise cannot be expected unless the one rejecting a
claim or demand is willing to make counter -suggestion or proposal . And, where that is
expressly invited but is refused, in such circumstances the refusal may go to support a want
of good faith and, hence , a refusal to bargain ," N. L R. B . Y George P . Pilling & Son Co,
119 F. (2d) 32 (C. C. A 3). .
ADLER, METAL PRODUCTS CORP. 229
might have led to agreement with the Union " Of like significance is Adler's
refusal to consider the Union's written proposal, paragraph by paragraph, on the
occasion when Commissioner Hale was present to aid the parties in settling their
difficulties.
Finally, Adler's testimony respecting his dealings with the group of seven
employees on October 16 makes inescapable the conclusion that he was unwilling
to deal with the Union. He testified that he told those employees that he "planned
on making" a wage increase of 5 cents per hour, which would be effective "very
soon," but he had not disclosed such plan to McVay and Otten, with whom he
asserts that he had been bargaining in good faith. His failure to make such dis-
closure to them and his action in unilaterally changing the wage rates constitute
a violation of his statutory duty to bargain collectively.12 That failure becomes
particularly indicative of bad faith when one considers the argument of his
counsel that the increase of 5 cents exceeded certain wage rates set forth in the
Union's proposed contract.
For the reasons set forth above, and upon the entire record in the case, the
undersigned finds that on August 21, 1946, and thereafter, the respondent refused
to bargain collectively with the Union as the exclusive representative of its em-
ployees in an appropriate unit, and that the respondent has thereby interfered
with, restrained, and coerced, and is interfering with, restraining, and coercing
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
The activities of the respondent 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
that it take certain affirmative action designed to effectuate the policies of the
Act. The undersigned has found that the Union represented a majority of the
employees in the appropriate unit and that the respondent refused to bargain
collectively with it. Accordingly, the undersigned will recommend that the re-
spondent, upon request, bargain collectively with the Union as the exclusive
i epresentative of the employees in the appropriate unit.
We have seen that the respondent steadfastly refused to bargain with the
Union, and that, while going through the surface appearances of negotiating, it
refused to discuss the Union's written proposal in detail, kept the Union in the
dark as to its own position on wages and working conditions, diligently avoided
any avenue which might have led to agreement, injected an extraneous issue
with the intent of frustrating the Union's effort to bargain, and granted a wage
11 "He sought to put the bargaining agent in the impossible position of meeting objections
which he purported to entertain but would not disclose , in the evident hope that he might
thus fasten upon the union responsibility for his own failure to negotiate," N. L. R. B. v.
George P. Pilling & Son Co , footnote 10.
12May Depantmer. t Stores Company v. N L. R B., 326 U. S 376; Medo Photo Supply
Corporation v. N. L. R. B , 321 U S 678
809095-49-vol. 79-16
230 ' DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
increase to the employees in the appropriate unit without first disclosing to the
Union its intent and willingness to elevate the wage rates. The undersigned
believes that the respondent's illegal conduct constitutes a threat to the broad
rights of employees under the Act. Because of the respondent's unlawful con-
duct and its underlying purpose and tendency, the undersigned is convinced that
the unfair labor practices found are persuasively related to the unfair labor
practices proscribed and that danger of their commission in the future is to be
anticipated from the course of the respondent's conduct in the past 33 The pre-
ventide purposes of the Act will be thwarted unless the undersigned's recom-
mendations are coextensive with the threat. In order, therefore, to make effec-
tive the interdependent guarantees of Section 7, to prevent a recurrence of unfair
labor practices, and thereby to minimize industrial strife which burdens and
obstructs commerce, and thus effectuate the policies of the Act, the undersigned
will recommend that the respondent cease and desist from in any manner in-
fringing upon the rights guaranteed in Section 7 of the Act.
Upon the above findings of fact, and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (3) of
the Act.
2 All production employees of the respondent at its St Louis, M ssnuii, p';int,
excluding clerical employees, foremen, the superintendent and any other super-
visory employees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend such
action; constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, on August 6, 1946, was, and at all times thereafter has been, 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
4. By refusing to bargain collectively with United Steelworkers of America,
affiliated with the Congress of Industrial Organizations, as the exclusive repre-
sentative of its employees in an 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 the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act
33 Cf May Department Stores Company v. N. L. R. B., footnote 12; N. L. R. B. V.
Express Publishing Company, 312 U. S 426.
ADLER METAL PRODUCTS CORP. 231
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law , the under-
signed hereby recommends that the respondent , Adler Metal Products Corp.,
its officers , agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Steelworkers of America,
affiliated with the Congress of Industrial Organizations , as the exclusive repre-
sentative of the respondent ' s production employees at its St. Louis, Missouri,
plant , excluding clerical employees , foremen, the superintendent and any other
supervisory employees with authority to hire , promote, discharge , discipline,
or otherwise effect changes in the status of employees , or effectively recommend
such action ; and
(b) In any other manner interfering with, restraining , or coercing its em-
ployees in the exercise of the right to self -organization , to form labor organiza-
tions , to join or assist United Steelworkers of America , affiliated with the Con-
gress of Industrial Organizations, or any other labor organization , to bargain
collectively through representatives of their own choosing , or to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request , bargain collectively with United Steelworkers of America,
affiliated with the,Congress of Industrial Organizations , as the exclusive repre-
sentative of its production employ ees at its St. Louis; Missouri , plant, excluding,
clerical employees , foremen , the superintendent and any other supervisory em-
ployees with authority to hire, promote, discharge , discipline , or otherwise effect
changes in the status of employees , or effectively recommend such action, in
respect to rates of pay, wages . hours of employment and other conditions of
employment , and, it an understanding is reached , embody such understanding
in a signed agreement;
(b) Post at its St. Louis plant copies of the notice attached hereto and marked
"Appendix A." Copies of the notice , to be furnished by the Regional Director
for the Fourteenth Region , shall, after being duly signed by the respondent's
representative , be posted by the respondent immediately upon receipt thereof,
and maintained by it for at least sixty ( 00) consecutive days thereafter, in con-
spicuous 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 any other material; and
(c) File with the Regional Director for the Fourteenth Region within ten (10)
days from the receipt of this Intermediate Report, a report in writing setting
forth in detail the manner and form in which the iespondeut has complied with
the foregoing recommendations.
It is further recommended that unless on or before ten (10 ) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will cQmply with the foregoing recommenda-
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, the National Labor Relations Board issue an order requiring the re-
spondent to take the action aforesaid.
- As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22 , 1947 , any party may,
within twenty ( 20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Rochambeau Building, Washington 25. D. C., an original
and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report or to any other part of the record or proceeding (including
rulings upon all motions or objections ) as he relies upon, together with the
original and six copies of a brief in support thereof ; and any party may, within
the same period , file an original and six copies of a brief in support of the
Intermediate Report. Immediately upon the filing of such statement of excep-
tions and/or briefs , the party filing the same shall serve a copy thereof upon
each of the other parties. Proof of service on the other parties of all papers
filed with the Board shall be promptly, made as required by Section 203.85. As
further provided in said Section 203 .46, should any party desire permission to
argue orally before the Board, request 'therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring the
case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations , be adopted by the Board and become its findings, con-
clusions and order , and all objections and exceptions thereto shall be deemed
waived for all purposes.
A. BRUCE HUNT,
Trial Examiner.
Dated September 29, 1947.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist UNITED STEELWORKERS OF AMERICA, AFFILIATED
WITH TIIE CONGRESS OF INDUSTRIAL ORGANIZATIONS, or any other labor
organization, to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL BARGAIN collectively upon request with the above -named union
as the exclusive representative of all employees in the bargaining unit de-
scribed below with respect to rates of pay, wages , hours of employment or
ADLER METAL PRODUCTS CORP. 233
other conditions of employment , and, if ' an understanding is reached,
embody such understanding in a signed agreement . The bargaining unit is:
All production employees at the St. Louis, Missouri , plant, excluding
clerical employees , foremen , the superintendent and any other supervisory
employees with authority to hire, promote , discharge , discipline , or otherwise
effect changes in the status of employees , or effectively recommend such
action.
ADLER METAL PRODUCTS CORP.,
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.