Art Metal Construction Company

National Labor Relations Board - Board Decisions

May 27, 1939

12 N.L.R.B. 1307 (N.L.R.B. 1939)

In the Matter of ART METAL CONSTRUCTION COMPANY and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS , LOCAL 1559, AFFILIATED WITH
DISTRICT #65, OF THE I. A. M. (A. F. OF L.)
Cases Nos. C-1126 and R-1164.-Decided May 27, 1939
Metal Office Equipment Manufacturing Industry-Interference, Restraint, or
^Coercion--Unit Appropriate for Collective Bargaining : production and main-
tenance employees , excluding supervisory and clerical employees ; stipulation
as to-Representatives : proof of choice: dues-record ledger and membership
cards checked against pay roll; stipulation as to majority , at time of hearing-
Collective Bargaining: announcement at outset of negotiations that company
refused to enter into signed agreement with union ; duty of employer under
circumstances to embody understandings reached with union in signed agree-
ment-Investigation of Representatives : petition for, dismissed , in view of
,order to bargain.
Mr. Peter J. Grotty, for the Board.
Slee, O'Brian, Hellings & Ulsh, by Mr. Dana B. Hellings, of Buffalo,
N. Y., for the respondent.
Mr. Paul R. Hutchings, of Washington, D. C., and Mr. Carl S.
Carlson, of Detroit, Mich., for the Union.
Mr. William P. Wysong, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On August 2, 1938, International Association of Machinists, Local
1559, herein called the Union, filed with the Regional Director for
the Third Region (Buffalo, New York) charges, and on November
30, 1938, amended charges, alleging that Art Metal Construction
Company, Jamestown, New York, herein called 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.
On October 7, 1938, the Union filed with the said Regional Director
a petition alleging that a question affecting commerce had arisen
concerning the representation of employees of the respondent and
12 N. L. R. B., No. 126.
1307
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requesting an investigation and certification of representatives pursu-
ant to Section 9 (c) of the Act. On November 23, 1938, the National
Labor Relations Board, herein called the Board, acting pursuant to
Section 9 (c) of the Act and Article III, Section 3, of National Labor-
Relations Board Rules and Regulations-Series 1, as amended, ordered
an investigation and authorized the Regional Director to conduct
it and to provide for an appropriate hearing upon due notice. On
the same day, the Board, acting pursuant to Article III, Section 10•
(c) (2), and Article II, Section 37 (b), of said Rules and Regulations
ordered that the representation case be consolidated for the purposes.
of hearing with the case involving the charges filed by the Union.
On November 30, 1938, the Union filed an amended petition.
Upon the charges and amended charges filed by the Union, the-
Board, by the Regional Director for the Third Region, issued its com-
plaint dated December 1, 1938, against the respondent alleging that
it had engaged in and was engaging in unfair labor practices affect-
ing commerce with the meaning of Section 8 (1) and (5) and Sec-
tion 2 (6) and (7) of the Act. A copy of the complaint and notice
of hearing upon the complaint and upon the petition were duly served
upon the respondent and upon the Union.
With respect to the unfair labor practices, the complaint alleged,.
in substance, that on or about March 31, 1937, and at all times there--
after, the Union was designated representative of a majority of then
employees of the respondent in an appropriate unit; that on or about
July 24, 1937, and at all times thereafter, the respondent refused to
bargain collectively with the Union as the exclusive representative of
all the employees in such unit; that on or about July 24, 1937, and,
at all times thereafter, the respondent refused to enter into any kind
of signed agreement with the Union as the exclusive representative'
of the employees in such unit regardless of the terms proposed; and'
that the respondent by virtue of the aforesaid acts, interfered with,
restrained, and coerced, and is restraining and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On December 10, 1938, the respondent filed an answer to the com-
plaint, admitting certain of the allegations of the complaint with
respect to the nature of its business and with respect to its refusal to
enter into a signed agreement with the Union, but denying that it had
engaged in or was engaging in any unfair labor practices.
Pursuant to notice, a hearing upon the complaint and the petition
was held at Jamestown, New York, on December 19, 1938, before
Mapes Davidson, the Trial Examiner duly designated by the Board.
The Board and the respondent were represented by counsel and the
Union by its international representative. All parties participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was
ART METAL CONSTRUCTION COMPANY 1309
afforded all parties. During the course of the hearing the Trial
Examiner made several rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
On January 19, 1939, the Trial Examiner filed his Intermediate
Report, finding that the respondent has 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 Act, and
recommending that the respondent cease and desist therefrom and take
certain specified affirmative action to effectuate the policies of the Act.
Thereafter the respondent filed exceptions to the Intermediate Report
and a brief in support of its exceptions.
Pursuant to notice, a hearing was held before the Board on March
23, 1939, for the purpose of oral argument. The respondent and the
Union were represented and participated therein.
The Board has considered the exceptions to the Intermediate Re-
port and the brief in support thereof, and, in so far as the exceptions
are inconsistent with the findings, conclusions, and order set forth
below, finds no merit in them.
Upon the entire record in the cases, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent , Art Metal Construction Company, is a Massachu-
setts corporation having its office and principal place of business in
Jamestown , New York . It maintains three plants in Jamestown
where it is engaged in the manufacture and sale of metal office equip-
ment, special bank and library equipment , and hollow metal. It also
has sales offices in a number of cities throughout the United States.
From July 1, 1937 , to June 30 , 1938, the respondent received at its
Jamestown plants about 17,000 tons of raw materials , valued at ap-
proximately $1,872,682. Approximately 60 per cent of the raw ma-
terials were shipped to the plants from outside the State of New York.
During the same period , the respondent shipped from its Jamestown
plant approximately 16,575 tons of finished products , valued at ap-
proximately $6,498,429 . Approximately 75 per cent of the finished
products were shipped outside the State of New York.
H. THE ORGANIZATION INVOLVED
International Association of Machinists, Local 1559, affiliated with
District 65, International Association of Machinists, and with the
American Federation of Labor, is a labor organization, admitting to
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its membership all the production and maintenance employees of the
respondent at its Jamestown plants, exclusive of supervisory and
clerical employees.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
It was stipulated at the hearing that all the production and main-
tenance employees of the respondent at its Jamestown plants, exclusive
of supervisory and clerical employees, constitute an appropriate bar-
gaining unit. We find no reason for concluding that such unit is
inappropriate for the purposes of collective bargaining.
We find that all the production and maintenance employees of the
respondent at its Jamestown plants, exclusive of supervisory and
clerical employees, constitute a unit appropriate for the purposes of
collective bargaining and that said 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.
2. Representation by the Union of the majority in the appropriate
unit
At the hearing, counsel for the respondent and counsel for the
Board stipulated that the respondent had in its employ 854 employees
in the unit which we have found to be appropriate; that a majority
of the employees in said unit had designated the Union as their sole
bargaining representative; that the Union presented at the hearing
cards designating the Union as such representative, signed by 503
of the employees in said unit; and that the respondent challenged 34
of the signatures on the designation cards, leaving 469 of the said
503 cards unchallenged. The respondent refused, however, to stipu-
late that the Union represented a majority of the employees in the
appropriate unit prior to the date of the hearing.
There was introduced in evidence, over the objection of the re-
spondent, a dues-record ledger of the Union. Harry F. Voght,
financial secretary of the Union, testified that such ledger was kept,
by him and contained an accurate record of the dues paid by the
members of the Union. The dues-record ledger shows that approxi-
mately 823 persons had on July 1, 1937, paid their dues to the Union
up to April 1, 1937; that approximately 803 persons had on August
1, 1937, paid their dues up to May 1, 1937; and that more than 500
persons had at all times during the remainder of 1937 paid dues up
to within a 3 months' period. Under the bylaws of the Union, a
ART METAL CONSTRUCTION COMPANY 1311
person remained in good standing in the Union until he was more
than 3 months in arrears in the payment of his dues. The Union
therefore had approximately 823 members in good standing on
July 1, 1937; approximately 803 members in good standing on
August 1, 1937; and more than 500 members in good standing during
the remainder of 1937. Voght testified, without contradiction, that
all the approximately 823 persons in good standing in the Union on
July 1, 1937, were employees of the respondent. The record shows,
moreover, that the Union limits its membership to employees of the
respondent in the unit which we have found to be appropriate. As
noted above, the respondent has stipulated that the Union represented
a majority of the employees within the appropriate unit at the time
of the hearing.
We find that on July 1, 1937, and at all times thereafter, the
Union was the duly designated representative of the majority of the
employees of the respondent in the appropriate unit, and, pursuant
to Section 9 (a) of the Act, was the exclusive representative of all
the employees in such unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, and other
conditions of employment.
3. The refusal to bargain
On July 24, 1937, representatives of the Union met with representa-
tives of the respondent and asked that the respondent sign a proposed
contract which provided, among other things, for wage increases and
for recognition of the Union as the exclusive bargaining representa-
tive of the respondent's employees. The representatives of the re-
spondent took the position that the respondent would not "sign
anything whatsoever" on the ground that the Act did not require it
to do so.
In September 1937, and about May 17, 1938, the Union again sub-
mitted proposed contracts to the respondent and the respondent re-
iterated its refusal to negotiate with respect to any written agreement.
On or about August 1, 1938, the Union made a final attempt to
secure a written agreement with the respondent. Algot J. E. Larson,
the respondent's president, testified at the hearing that at such time,
"we said we did not wish to sign any agreement." When questioned
at the hearing as to whether any reason was given for the respond-
ent's refusal to sign an agreement, Larson further testified, "Why
our reason was that it was not required by law and therefore, we
did not wish to sign any agreement."
At the hearing, counsel for the respondent offered to stipulate on,
behalf of the respondent that, "at all times past, during the period
in which the negotiations have occurred between said Local 1559 and
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Art Metal Construction Company, beginning October 5, 1936, and
continuing to date, Art Metal Construction Company has refused,
and now does refuse, to enter into or sign any agreement in writing
with said Local in negotiations, on the ground, among others, that
it is not required to do so under the National Labor Relations Act,
and that the I. A. M., by virtue of its organization and character, is
not a proper contracting party which can be held responsible under
contract, and that said resulting agreement, if signed, would be in
the nature of a unilateral contract." Counsel for the Board agreed
to stipulate that such was the position of the respondent, but refused
-to stipulate that the Union was not a proper contracting party.
Collective bargaining, as contemplated by the Act, is a procedure
looking toward the making of a collective agreement by the employer
-with the accredited representative of its employees touching wages,
hours of service, and other working conditions of its employees.'
The duty to bargain collectively, which the Act imposes upon em-
ployers, has as its objective the establishment of such contractual
relationship.2 We have held that this duty is not limited to a meeting
or discussion of terms with the employees' representatives. The duty
encompasses an obligation to enter into discussion and negotiation
with an open and fair mind and with a sincere purpose to find a
basis of agreement concerning the issues presented,3 to make con-
tractually binding the understanding upon the terms reached,4 and,
I Matter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No.
325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America,
American Federation of Labor, 10 N. L R. B. 963 ; Matter of Inland Steel Company
and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel,
and Tin Workers of North America , Lodge Nos . 64, 1010, and 1101, 9 N L. R. B 783;
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.
In Consolidated Edison Company of New York, Inc., at at v National Labor Relations
Board, at at , 305 U. S . 197, 235, the United States Supreme Court said :
The Act contemplates the making of contracts with labor organizations. That
is the manifest objective in providing for collective bargaining.
In National Labor Relations Board v. The Sands Manufacturing Company, 59 S. Ct.
508, 513-14, that court said :
The legislative history of the Act goes far to indicate that the purpose of the
statute was to compel employers to bargain collectively with their employees to the
end that employment contracts binding on both parties should be made
2 See cases cited in footnote 1.
i Matter of Globe Cotton Mills and Textile Workers Organizing Committee , 6 N. L. R B.
461, affirmative order enforced in Globe Cotton Mills v . National Labor Relations Board, 103
F (2d) 91, (C. C A. 5) ; Matter of S. L. Allen & Company , Inc., a Corporation and Federal
Labor Union Local No 18526 , 1 N. L. R. B. 714 , order enforced (C. C. A 3) C. C. H. Labor
Law Service , par 18989 ; Matter of Knoxville Publishing Company and American News-
paper Guild , The Knoxville Newspaper Guild, 12 N L R B 1209
4 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 ; Matter of Sigmund
Preisinger, doing business under the name and style of North River Yarn Dyers and
Textile Workers Organizing Committee , 10 N. L . It. B 1043; Matter of Harry Schwartz
Yarn Co , Inc . and Textile Workers Organizing Committee, 12 N L. R B 1139 See also
Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalga-
nmated Association of Iron, Steel , and Tin Workers of North American , Lodge Nos.
,614, 1010, and 1101, 9 N. L. R. B. 783.
ART METAL CONSTRUCTION COMPANY 1313
,under ordinary circumstances, to reduce that obligation to the form
of a signed written agreement if requested to do so by the employees'
representatives."
Manifestly, the respondent has not fulfilled its duty to bargain
collectively with the Union. The attitude and position which its
representatives assumed at the July 24 conference, and at all times
-thereafter, clearly show that the respondent did not negotiate, nor
did it intend to negotiate, on the basis of an acceptance of the pro-
,cedure of collective bargaining. From the outset its declared pur-
pose was to make no signed written agreement with the Union, ir-
respective of what terms were proposed or understanding reached.6
We see no persuasive reason, nor has the respondent advanced any,
for its unwillingness to enter into any signed agreement with the
Union. The respondent contends that the Union, by virtue of its
organization and character, is not a proper contracting party which
can be held responsible under contract. There is no support in the
record for such contention. Moreover, an employer may not deny
collective bargaining to his employees merely because he views the
union which represents them as irresponsible nor may he refuse to
embody any understanding which may be reached in a signed agree-
ment for that reason.7
The respondent, in its brief, contends that the Union had never
established or made known to the respondent its authority to act as
the exclusive bargaining representative of the respondent's employees.
We find no merit in this contention. The various contracts proposed
by the Union provided for recognition of the Union as exclusive bar-
gaining representative and the respondent at no time during the con-
ferences with the Union raised any question as to the majority status
6 Matter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No.
825, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America,
American Federation of Labor, 10 N L R B 963. Matter of Inland Steel Company
and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel,
and Tin Workers of North America , Lodge Nos . 64, 1010, and 1101, 9 N L R . B. 783.
"Matter of Inland Steel Company and Steel Workers Organizing Committee and
Amalgamated Association of Iron, Steel, and Tin Workers of North America , Lodge Nos.
'6I, 1010 and 1101, 9 N. L. R. B. 783 . In this case it was said:
We regard it as well settled that collective bargaining in good faith requires a
willingness to consummate the negotiations , if successful , by entering into some
sort of an agreement And we hold that under circumstances such as are presented
here, it is the employer ' s obligation to accede to a request that understandings
reached be embodied in a signed agreement . The present controversy is projected
on the background of a long struggle by labor organizations to attain fu'_l recogni-
tion of their right to recognition as collective bargaining agencies with a dignity
equal to that of the employers with whom they deal. We take judicial notice of
fact that today thousands of employers have accorded unions their right to normal
contractual relationships , and that , as is shown by the record, the signed collective
bargaining agreement is the prevailing practice From the viewpoint of harmoni-
ous and cooperative labor relations , as well as of sensible business practice, the
importance of embodying understandings in signed agreements is obvious.
7 Matter of Inland Steel Company and Steel Workers Organizing Committee and
Amalgamated Association of Iron, Steel and Tin Workers of North America , Lodge Nos.
64, 1010 and 1101, 9 N . L. R. B. 783.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
of the Union. It is plain that the respondent did not base its refusal
to sign an agreement with the Union on any doubt which it might
have as to the majority status of the Union. It may not therefore now
assert doubt as to majority or assert failure of the Union to prove its
majority at the time it sought to bargain as a justification for a refusal
to bargain."
We find that the respondent by refusing on July 24, 1937, and at
all times thereafter, to enter into any signed written agreement with,
the Union irrespective of what terms might be proposed by or under-
standing had with the Union, did on July 24, 1937, and at all times
thereafter refuse to bargain collectively with the Union as the repre-
sentative of its employees in the appropriate unit in respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment. We also find that by such refusal the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed by 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 respond-
ent, described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and have led and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It is essential in order to effectuate the purpose and policies of the
Act that the respondent be ordered to cease and desist from the un-
fair labor practices in which we have found it to have engaged, and
in aid of such order and as a means of removing and avoiding the con-
sequences of such practice, that the respondent be directed to take
certain affirmative action.
We have found that on July 24, 1937, and at all times thereafter,
the respondent refused to bargain collectively with the Union as the
representative of its employees. Accordingly, we shall order the re-
spondent to cease and desist from this unfair labor practice, and upon
request, to bargain collectively with the Union as the exclusive repre-
sentative of all the production and maintenance employees of the
respondent at its Jamestown plants, exclusive of supervisory and
clerical employees, with respect to rates of pay, wages, hours of work,
and other conditions of employment, and if an understanding is
reached on any of such matters, to embody such understanding in a
signed agreement, if requested to do so by the Union.
8 See National Labor Relations Board v. Remington Rand, Inc., 94 F. ( 2d) 892
(C. C. A. 2d, 1938).
ART METAL CONSTRUCTION COMPANY
VI. THE PETITION
1315
In view of the findings in Section III above as to the appropriate
bargaining unit and the designation of the I. A. M. by a majority
of the respondent's employees in the appropriate bargaining unit
as their representative for the purposes of collective bargaining, it
is not necessary to consider the petition of the I. A. M. for certifi-
cation of representatives. Consequently the petition will be
dismissed.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, Local 1559, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. The production and maintenance workers of the respondent at
its Jamestown, New York, plants, excluding supervisory and clerical
employees, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
3. International Association of Machinists, Local 1559, was on
July 1, 1937, and at all times since has been, the exclusive representa-
tive of all employees in such unit for the purposes of collective bar-
gaining, within the meaning of Section 9 (a) of the Act.
4. By refusing on July 24, 1937, and at all times thereafter, to
bargain collectively with the International Association of Machinists,.
Local 1559, as the exclusive representative of all its employees in
such 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.
ORDER
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 Art
Metal Construction Company, Jamestown, New York, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Associa-
tion of Machinists, Local No. 1559, as the exclusive representative
169134-39-vol. 12-84
-1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of all the production and maintenance employees employed at its
.Jamestown, New York, plants, excluding supervisory and clerical
employees ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right 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 and protection, as guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the Board finds
-will effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Asso-
.,ciation of Machinists, Local 1559, as the exclusive representative of
all its production and maintenance employees employed at its James-
town, New York, plants, excluding supervisory and clerical em-
-ployees, in respect to rates of pay, wages, hours of employment, and
.other conditions of employment, and, if an understanding is reached
.on any such matters, embody such understanding in a signed agree-
ment, if requested to do so by International Association of Ma-
chinists, Local 1559;
(b) Post immediately notices to its employees in conspicuous places
throughout its Jamestown, New York, plants, stating (1) that it
will cease and desist as set forth in 1 (a) and (b) above, and (2)
that it will take the affirmative action set forth in 2 (a) above;
(c) Maintain such notices for a period of at least sixty (60) con-
secutive days from the date of the posting;
(d) Notify the Regional Director for the Third Region in writing
within ten (10) days from the date of this Order what steps the
-respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the petition for investigation and
.certification of representatives filed by International Association of
Machinists, Local 1559, be, and it hereby is, dismissed.