Auto Stove Works

National Labor Relations Board - Board Decisions

Mar 8, 1949

81 N.L.R.B. 1203 (N.L.R.B. 1949)

In the Matter of AuTo STOVE WORKS and STOVE MOUNTERS INTERNA-
TIONAL UNION OF NORTH AMERICA, LOCAL No. 52, A. F. L.
Case No. 14-0-1264.Decided March 8,1949
DECISION
AND
ORDER
On September 24, 1948, Trial Examiner Maurice M. Miller issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not violated Section 8 (a) (1), (3), or (5) of the
Act, as alleged in the complaint, and recommending that the com-
plaint against the Respondent be dismissed in its entirety. Thereafter,
the General Counsel filed exceptions to the Intermediate Report and a
supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.2 The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner set forth in the copy of his Intermediate ]Re-
port, attached hereto, with the following additions and qualifications.
We agree with the finding of the Trial Examiner that the Respond-
ent's operations at its New Athens plant, upon the shut-down of its
Stockyard plant, constituted an expansion of the operations in the New
Athens plant rather than a merger of the two plant operations. The
General Counsel contends, nevertheless, that the Respondent was obli-
gated to bargain with the Union with respect to the possible transfer of
Stockyards employees to the New Athens plant.
Despite the prospective closing of the Stockyards plant on April
1, 1947, the Respondent and the Union continued negotiations in
January and February 1947, for a contract to cover the remaining
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -man panel consisting of the undersigned
Board Members [ Chairman Herzog and Members Houston and Gray].
We, also affirm the Trial Examiner 's ruling that the complaint was properly issued.
Matter of Itasca Cotton Manufacturing Company, 79 N. L. It. B. 1442.
81 N. L. R. B., No. 188.
1203
829595-50-vol. 81-77
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period of operations at the Stockyards plant. On February 6, 1947,
negotiations broke down when the Union refused to sign the contract
proposed by the Respondent, and the employees struck. For the rea-
sons stated in the Intermediate Report, with which we agree, the
Respondent's conduct through this point did not involve any unfair
labor practices. Thereafter, on February 25, 1947, the Respondent
again offered to execute the proposed contract if the employees would
return to work by March 3,1947. The Union did not reply. On March
3, 1947, the Respondent advised its Stockyards employees by letter
that their services as employees were being terminated as of that date.
Although the Respondent had informed the Union in January that the
Stockyards plant definitely would shut down on April 1, it was not
until March 26, 1947, 3 weeks after the discharge of all Stockyards
employees, that the Union first requested the Respondent to bargain
with it relative to the transfer of employees to the New Athens
plant. The Respondent made no reply to this request.
We find, in agreement with the Trial Examiner, that on March 3,
1947, the employment relationship between the Respondent and its
Stockyards employees was terminated when the employees were dis-
missed by the Respondent for nondiscriminatory reasons .3 On March
26,1947, therefore, the Union did not represent employees in the Stock-
yards plant, and its request to bargain on that date came too late.4
We therefore agree with the finding of the Trial Examiner that the
Respondent's refusal to bargain with the Union relative to the transfer
of employees from the Stockyards plant to the New Athens plant was
not violative of Section 8 (a) (5) of the Act, as amended.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein against
the Respondent, Auto Stove Works, New Athens, Illinois, be, and it
hereby is, dismissed.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Harry G. Carlson , for the General Counsel.
Messrs. Lewis J. Colombo , Jr., of Detroit, Mich., and George Grosser, of Kala-
mazoo, Mich., for the Respondent.
' As distinguished from Matter of Howard Rome, et al ., 77 N. L ., R. B. 1217 , where the
"removal of the plant was, in effect, an illegal lockout of employees " and was accomplished
in a manner to avoid a bargaining conference, thus violating Section 8 (a) (5) of the Act.
4 Matter of National Hardware Company, 55 N. L. R. B . 71. Cf. Matter of Brown
McLaren Manufacturing Company, 34 N L. R B. 984, where the union involved sought to
bargain regarding the transfer of employees before their employment was terminated.
AUTO STOVE WORKS 1205
Messrs. Joseph Lewis, of St. Louis, Mo., and James M. Roberts, of O'Fallon, Ill.,
for the Mounters.
Mr. Robert A. Wilson, of Cincinnati, Ohio, for the Molders.
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by the Stove Mounters Interna-
tional Union of North America, Local No. 52, affiliated with the American Federa-
tion of Labor, herein designated as the Mounters, the General Counsel of the
National Labor Relations Board ,' in the name of the Board , caused the Regional
Director for its Fourteenth Region, at St. Louis, Missouri , to issue a complaint
dated June 4, 1948, against the Auto Stove Works of New Athens, Illinois , herein
called the Respondent, which alleged that the Respondent did engage and has
continued to engage in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1), (3), (5) and Section 2 (6) and (7) of the National Labor'
Relations Act, 49 Stat. 449, herein called the original Act, and Section 8 (a) (1),
(3), (5) and Section 2 (6) and (7) of the Act as amended and reenacted in the
Labor Management Relations Act of 1947, 61 Stat. 136, designated herein as the
Act 2 Copies of the complaint, the amended charge and a notice of hearing were
duly served upon the Respondent and the Mounters.
With respect to the unfair labor practices, the complaint, as amended, alleged
in substance: (1) that the production and maintenance employees of the Re-
spondent at its plant in National Stockyards, Illinois, and all stove mounters
at its plant in New Athens, Illinois, exclusive of other employees, office employees
and supervisory employees as defined in the original Act and the Act as amended,
constituted and now constitute a unit appropriate for the purposes of collective
bargaining; (2) that the Mounters have been, throughout the period of time
involved in the instant case, the representative of a majority in the aforesaid
unit, entitled to recognition, under Section 9 (a) of the original Act and the
amended Act, as the exclusive representative of all the employees in the afore-
said unit for the purposes of collective bargaining; (3) that the Mounters, on
or about September 6, 1946 and thereafter, requested the Respondent to bar-
gain collectively with them as the exclusive representative of the employees in
the aforesaid unit, and that the Respondent refused to do so; (4) that the Re-
spondent, since September 6, 1946, has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed by the original Act and the Act
as amended, by (a) threatening to produce stoves without "Stove Mounters" at
a time when the Mounters were the duly recognized collective bargaining reprel
sentative of the workers employed by it as stove mounters, (b) extending recog-
nition to the International Molders and Foundry Workers Union of North
America, AFL, herein called the Molders, as the representative of employees
within the unit represented by the Mounters, and (c) stating to a representative
of the Mounters that the members of that organization at its National Stock-
yards plant would have to join the Molders if they intended to continue in
its employ at New Athens; (5) that the Respondent, on or about March 3, 194T,
discharged and locked out the production and maintenance employees at its
National Stockyards plant, and that it has failed and refused to reinstate them
since that date because they held membership in the Mounters, because they
1 The General Counsel and his representative In this case are designated herein as the
'General Counsel, ahd the National Labor Relations Board as the Board.
9 The statute will be designated also as "the amended Act ," "the amended statute," and
"the Act as amended" when essential in the interest of clarity.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in concerted activity for the purpose of collective bargaining, and be-
cause they refused to join the Molders; and (6) that the course of conduct thus
described involves unfair labor practices which affected and continue to affect
commerce, within the meaning of the original Act and the Act as amended.
In its answer, duly filed, the Respondent admitted the jurisdictional allega-
tions of the complaint, but denied the commission of any unfair labor practices.
It also alleged, by way of affirmative defense that it is now, and has been for
years, a member of the Manufacturers Protective and Development Association,
a trade association, which has bargained collectively with the Molders, for more
than half a century, on behalf of its member firms ; that the agreements which
have been the result have been reduced to written form for many years and
have been respected by the parties ; that the Molders have executed these agree-
ments as the representative of their employee members, and that all of the
employees at the Respondent's New Athens plant, except for supervisory, clerical
and sales employees, who are eligible for membership in the Molders, are mem-
bers of that organization ; that the Manufacturers Protective and Development
Association, acting for the Respondent and its other members, bargained col-
lectively with the Molders before January 1, 1947, and that the contract be-
tween the Association and the Molders, which was then about to expire, was
renewed with certain amendments and embodied in a document identified as a
Conference Agreement; that the Molders, and the local of that organization at
New Athens, assert that they are the exclusive bargaining representative, under
the terms of the Conference Agreement, of all the employees at Respondent's
New Athens plant except for the supervisory, clerical and sales employees ; that
the exclusive bargaining right of the Molders under the Conference Agreements
has been recognized and approved in a previous Board decision which upheld
and enforced the terms of the agreement as renewed ; that it was therefore
mandatory upon the Respondent to recognize the Molders, and their local, as
the exclusive representative of its employees at New Athens ; and that the
existence of the Conference Agreement and Board decision were known to the
Mounters, and the members of that organization, at the time of the events
involved in the instant case. The answer also urged the dismissal of the com-
plaint on the ground that the Mounters had failed to comply with Section 10 (b)
of the Act.
Pursuant to notice a hearing was held at St. Louis, Missouri, on July 13, and
14, 1948, before the undersigned , Maurice M. Miller, the Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel, the Respondent,
and the Molders were represented .by counsel, and the Mounters by their general
president and a business representative. At the outset, counsel for the Molders
moved to intervene on the ground that the General Counsel 's complaint put in
issue the "validity" of the Respondent's contract with that organization. There
was no objection. The motion was granted. Thereafter, the undersigned re-
ceived, as part of the record, an answer filed by the Molders which admitted the
character of the Mounters as a labor organization within the meaning of the
Act, disclaimed all knowledge with respect to the alleged discharge and lockout
of the employees at the National Stockyards plant and denied that any of them
►iad been discharged because of a refusal to join the Molders, denied the propriety
of the unit described as appropriate in the complaint , denied that the Mounters
were entitled to recognition as the exclusive representative of the employees in
the unit alleged to be appropriate , disclaimed all knowledge of the refusal to
bargain alleged in the complaint , denied that it had been granted recognition
as the representative of employees in a unit represented by the Mounters, and
AUTO STOVE WORKS 1207
denied all knowledge of other interference, restraint or coercion attributed to
the Respondent. All of the parties participated in the case, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence pertinent to the issues. During his presentation, counsel for
the General Counsel moved on two occasions to amend the complaint, by the
deletion of certain names from a list of dischargees appended to it and the
addition of certain others. There were no objections. The motions were
granted. At the conclusion of the case for the General Counsel, counsel for the
Respondent and the Molders joined in a motion to dismiss the complaint. The
decision of the undersigned was reserved ; the motion is disposed of in this
report. At the close of the testimony, also, the General Counsel moved to con-
form the complaint to the proof with respect to formal matters. The motion
was granted. Oral argument, in which counsel for the Respondent, the Molders
and the General Counsel participated was heard at the close of the case, and
forms a part of the record. Briefs have been received from counsel for the
Respondent and counsel for the Molders.
At the close of the oral argument, counsel for the Respondent and the Molders
were asked to state the basis of their contention that the case had been brought
to hearing in contravention of Section 10 (b) of the Act as amended. Both
of them indicated that their contention was based upon the proviso in that
section, which reads :
Provided, that no complaint shall issue based upon any unfair labor prac-
tice occurring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom such
charge is made, unless the person aggrieved thereby was prevented from
filing such charge by reason of service in the armed forces, in which event
the six month period shall be computed from the day of his discharge.
Counsel reserved all argument on their contentions in this connection. The
record shows that the original charge in the case was filed on February 12, 1947;
it alleged a violation of Section 8 (1) and (5) of the original Act of February
7th of that year. Thereafter, on June 11, 1947, the Mounters filed an amended
charge, which alleged violations of Section 8 (1), (3) and ( 5) of the original
Act on December 20, 1946 and March 3, 1947. A document offered and received
in evidence after the hearing, on the basis of a prior stipulation, establishes that
copies of the original and the amended charge were served upon the Respondent,
on July 1, 1947, by registered mail. The undersigned, upon this record, finds
no merit in the contention that his consideration of the instant matter is barred
by the cited provision of the statute.
It should be noted, at the outset, that the restriction imposed, although phrased
in terms which relate to the issuance of complaints, actually rests upon the time
element involved in the filing and service of charges. If charges are filed and
served within six months after the commission of an unfair labor practice, there
is no limitation upon the period within which the General Counsel may, there-
after, issue the complaint. The provision, nevertheless, was clearly intended as
one of limitation, with respect to causes of action under the Act as amended-
and the undersigned so finds.
When considering, however, as a statute of limitation, whether in relation to
the filing and service of charges or in relation to the issuance of complaints, the
cited provision, it is clear, must be given prospective, rather than retroactive,
effect. In the absence of any clear manifestation to the contrary, the courts of
the United States have consistently held that federal causes of action are
governed by the limitations statute in effect at the time the cause of action
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arose. United States v. St. Louis RR. Co , 270 U. S. 1; The Pocahontas, 20 F.
Supp. 1005 (D. C N. J.) Baron v. Compagnle Generale Transatlantique, 108 F.
(2d) 21 , 23 (C. C. A. 2) ; N. Y. C. v. Wheeling Can Co. , 275 U. S. 490. Where
the prior statute imposed no limitation , causes of action which arose before
the adoption of the limitation may be made the subject of a claim any time
during the entire period allowed for future claims after the enactment of the
statute. Fred Smartley , Jr., v. Pa Sugar Co., 108 F. ( 2d) 603 (C. C. A. 4),
Sohn v. Waterson , 84 U. S. 596, Carseadden v. Territory of Alaska , 105 F. (2t1)
377 (C. C. A. 9).
It follows , in the instant case, that the complaint was properly issued-in spite
of the fact that service of the original and amended charges was not effective
until more than six months after the first of the unfair labor practices alleged-
since the cause of action arose, and service of the charge was complete , before
the effective date of the amended Act . It is obvious , if this is accepted as true,
that the agency action contemplated in the amendment was complete when the
period of limitation fixed by the statute was tolled . The General Counsel, then,
had the authority , thereafter , to issue the complaint herein , and the under-
signed so finds.
Upon the entire record in the case , and from his observation of witnesses, the
undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Auto Stove Works, hereinafter designated as the Respondent , is a corporation
duly licensed under the laws of the State of Illinois , which is engaged in the
manufacture of stoves , ranges and related heating appliances at New Athens,
in that State . In 1947 , a representative period, the Respondent received mate-
rials and equipment valued in excess of $100,000 at its New Athens plant ; ap-
proximately 25 percent of the materials and equipment received was purchased
and transported to the plant from points outside of Illinois. In the same period,
also, the Respondent at its New Athens plant , produced finished products valued
in excess of $500,000 ; approximately 75 percent of the finished products were
transported in commerce to customers outside the state.
The Respondent in its answer , and at the hearing, conceded that it is engaged
in commerce , within the meaning of the original Act and the Act as amended.
II. THE ORGANIZATIONS INVOLVED
Stove Mounters International Union of North America, Local No. 52, affiliated
with the American Federation of Labor, is a labor organization which admits to
membership employees of the Respondent . Its jurisdiction includes :
All workmen or women engaged in Mounting , Assembling of Stoves, Fur-
naces, Heaters, Gas and Electric Ranges and Heaters, Malleable Ranges,
Gasoline Stoves, Oil Heaters, Marine Stoves and Ranges , Camp Stoves, Bake
Ovens and all parts pertaining thereto, Drillers , Riveters , Machine and
Bench Hands , White Metal Workers, Stove and Heater Repairmen , Cutters,
Punchers and Breakers, Press Hands , Pattern Fitters , and Filers , Manifold
Fitters and Testers, Gaters and Welders , Conveyor Mounters , Grinders,
Tappers, Ware Dressers and all enameling pertaining to stove, range and
heater parts, and all such general workmen and women that are engaged
in the various departments.
AUTO STOVE WORKS 1209
The constitution of the organization also provides that its jurisdiction shall
include "such other work" as it may hereafter acquire.
International Molders and Foundry Workers Union of North America, affiliated
with the American Federation of Labor, through its local at Belleville, Illinois,
admits to membership employees of the Respondent. The jurisdiction of the
organization is not set forth in the record. It was stipulated, however, that
This union is a labor organization, within the meaning of the original Act and the
Act as amended, and the undersigned so finds.
III. THE UNFAIR LABOR PRACTICES
A. The history of collective bargaining
The contractual relationship between the Respondent and the Mounters ap-
pears to have begun in 1904, at which time Local 72 of the latter organization
was charted at New Athens, Illinois,' and reached an agreement with the com-
pany. The unit which the Mounters represented at the time is not defined in
the record. The evidence indicates, however, that the Molders, an organiza-
tion also recognized by the Respondent, represented the employees in the Re-
spondent's foundry.
In 1908, the Respondent became a member of the Manufacturers Protective
and Development Association. This organization, to which reference has already
been made, has been engaged, since 1891, in the negotiation and execution of
annual industry-wide agreements, known as Conference Agreements, with the
Molders, on behalf of all of its member firms engaged in productive activity
within the jurisdiction of that organization. Since 1908, therefore, the con-
tractual relationship between the Respondent and the Molders has been based
upon the industry-wide agreements negotiated and executed by the Association.
The record contains no copies of any contract between the Respondent and a
labor organization prior to 1920. No inferences with respect to the jurisdiction
of the Mounters and the Molders prior to that year, therefore, have been drawn.
In 1920, however, the preferential employment clause in the agreement of
the Respondent and the Mounters, for the calendar year, provided that prefer-
ence was to be given to "members in good standing coming properly under the
jurisdiction of the union." The language appeared without change in every
agreement during the period from 1920 to 1928. Its significance with respect
to specific job classifications is not entirely clear, although its apparent inter-
pretation by the Respondent and the union can be derived, in general terms,
from the list of jobs for which wages were set by contract.4
The contemporary agreements between the Respondent and the Molders in
the period from 1920 to 1928, 1. e., the Conference Agreements, appear to have
been equally vague. Throughout this period, in fact, the agreements con-
tained no definition of the bargaining unit; a study of one agreement considered
to be representative of those in effect at the time, indicates that they covered
members of the Molders employed by members of the Association, whether or
I The evidence indicates that this Local , although chartered to represent employees in
the area without distinction at to their place of employment, limited itself, in time, to
the employees of the Respondent.
4 The following job classifications were listed In the 1920 and 1928 contracts, which
Lave been received in evidence : ( 1) mounters ( 2) steel range workers ( 3) horizontal
lathe drillers ( 4) furnace mounters ( 5) cutters ( 6) punchers ( 7) breakers ( 8) testers (9)
welders ( 10) manifold fitters ( 11) pattern filers . The 1920 agreement also covered
pattern makers, pattern fitters, eaters, and repair men , while the 1928 agreement, which
omitted all reference to these classifications , included a reference to riveters.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not a majority of the persons in the employ of the Association member main-
tained membership in the labor organization. In general, however, it would
appear that the Conference Agreements, in this period, were intended to cover
journeymen molders, apprentice molders, and helpers directly involved in the
work of a foundry, at the plants of Association members.
During this period, at its New Athens plant, the Respondent maintained five
departments-a Foundry Department, represented, as we have seen, by the
Molders ; a Plating Department, represented by the Metal Polishers, Buffers,
Platers and Helpers International Union, affiliated with the American Federa-
tion of Labor ; a Sheet Iron Heater Department, in which the company manu-
factured and mounted, on a "track" or assembly line, a line of air-tight heaters,
and in which the employees were represented by the Foundry Employees Union,
affiliated with the American Federation of Labor ; a Sheet Metal Department,
represented by the Mounters ; and a Shipping and Mounting Department, in
which it employed bench mounters to assemble other types of stoves and heaters,
and in which it prepared for shipment and crated all of the items which the
firm produced. The employees in this department appear to have been rep-
resented in part by the Mounters and in part by the Foundry Employees Union.
In 1929, as a part of its expansion program, the Respondent opened a second
plant, at National Stockyards, Illinois, in the East St. Louis area.` Before
operations at National Stockyards began, however, the Mounters, within
whose jurisdiction the projected activity at the second plant would fall, re-
quested recognition as the representative of prospective employees at that
location. This was refused. The Mounters in the Respondent's employ at
New Athens, then, according to the record, refused to continue at work, and
struck. The Respondent, however, was able to move certain necessary equip-
ment from New Athens to National Stockyards, and opened its plant pursuant
to plan. It recruited its employees in the East St. Louis area, and recognized na
union as the representative of the employees involved in the new operation.
This situation continued until 1937, without change.
From 1929 through 1936, in fact, the Respondent maintained its operation at
New Athens, also , without any contract with the Mounters. Whether it mounted
any stoves or did assembly work at New Athens, during this period, is a matter
of some dispute .6 In any event, it is clear that Local 72 of the Mounters, which
had struck in 1929 as previously noted, had no active members at the New Athens
plant throughout the period in question.
Throughout the period in which the Respondent maintained a plant at National
Stockyards-which ran, as we shall see, from 1929 through 1946-it was engaged
at that location in the production of a line which included gas stoves, combination
gas and coal ranges, wood ranges, oven heat heaters, coal and wood heaters , boiler
heaters, coal ranges, steel coal ranges, and a line of heating stoves identified as
Rex and Ivy heaters. The plant, which occupied space under lease in two con-
tiguous buildings, maintained four departments-a Sheet Metal Department,
which utilized heavy presses, shears and punch machines to fabricate parts for
the general line of company products ; a Mounting Department, in two sections,
in which the firm utilized bench mounters and assembly line workers to mount
• The plant in question was located approximately 32 miles from New Athens.
e The departments left at New Athens Included the Foundry Department, the Plating
Department, the Sheet Iron Heater Department, and a portion of the former Shipping
and Mounting Department . The Foundry employees were represented by the Molders ;
those in the Plating Department by the Metal Polishers ; and those in the other two.
departments by the Foundry Employees Union.
e
AUTO STOVE WORKS 1211
and assemble the general line of company products exclusive of air-tight heaters,'
a Maintenance Department ; and a Laboring Department, which appears to have
included every operation associated with production, except for those directly
involved in fabrication and assembly!
In 1937, on a date which does not appear in the record, Local No. 52 was
chartered by the Mounters to represent the employees at the National Stockyards
plant. It was recognized by the Respondent, after a show of cards, as the repre-
sentative of all the production and maintenance employees at the plant in ques-
tion. The agreement of the Respondent and the Mounters for the 1937 calendar
year, which was executed shortly thereafter , again provided that preference in
employment was to be given to "members of the above named organization in
good standing and who carry the regular working card of the union." Specific
wage rates were established by the agreement for (1) mounters (2) apprentice
mounters (3) cutters (4) punchers (5) welders-spot, are, acetylene, and electric
(6) manifold fitters (7) testers (8) Robertshaw men (9) fabricators (10) Steel
Department employees (11) replacement and trouble shooters (12) reservoir
workers (13) pattern filers (14) gaters (15) repair men (16) the shop engineer
(17) maintenance men and (18) laborers.
Shortly after this agreement was reached, one, and later three bench mounters
were shifted from National Stockyards to the New Athens plant, where it was
expected that they would assemble Rex and Ivy heaters fabricated, in part, at
National Stockyards." Despite this shift in the location of their employment,
the Respondent and the Mounters agreed that these individuals would be per-
mitted to retain their membership in Local No. 52, and the Respondent agreed to
continue to recognize the Mounters as their bargaining representative. 10 From
1937 through 1946, the Mounters represented all the production and maintenance
employees at the National Stockyards plant and the bench mounters assigned to
work on Rex and Ivy heaters at New Athens.
In 1938, at its annual convention, the American Federation of Labor revoked
the charter of the Foundry Employees Union and awarded jurisdiction over
employees who held membership in that body to the Molders. The Manufacturers
Protective and Development Association, according to the record, decided to "go
along" with this decision. The Association, therefore, recognized the Molders as
the representative of the persons employed by member firms who had previously
been covered by agreements between such firms and, the Foundry Employees
Union. This did not affect the relationship between the Respondent and the
employees at its National Stockyards plant. At New Athens, however, this de-
cision meant that the Molders were recognized, for the first time, as the repre-
sentative of employees outside of the foundry. In particular, their representative
status was recognized in the Sheet Iron Heater Department and the Shipping and
Mounting Department u
7 Castings required in connection with the operation appear to have been shipped to
National Stockyards from the plant at New Athens.
"Among the operations generally understood to be within the Laboring Department,
various witnesses listed trucking , shearing , painting , lacquering , japanning , grinding,
drilling, sweeping , acetylene welding, sawmill work , elevator operation , crating, packing,
and the loading and unloading of shipments.
Y The Respondents continued to fabricate and assemble some Rex and Ivy heaters at
the National Stockyards plant.
10 The record indicates that the Foundry Employees Union and the Molders at New
Athens made no objection to this arrangement.
u The change did not affect the Plating Department , for which the Respondent continued
to recognize the Metal Polishers union . The Sheet Metal Department, of course , was not
involved, since it had been moved from New Athens to National Stockyards in 1929, In
connection with the expansion program of that year.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Sheet Iron Heater Department, at the time-and, in fact, throughout the
period from 1929 through 1946-was engaged in the manufacture and "track"
assembly of the Company's line of air-tight heaters and the partial fabrication of
steel parts for items in the general line of company products, which the Re-
spondent shipped to National Stockyards for assembly.12 The Shipping and
Mounting Department, at the time-and, in fact, throughout the period from 1929
through 1946-was engaged in the crating and shipment of the air-tight heaters
which had been assembled in the Sheet Iron Heater Department. The persons
employed in this department, except for the three bench mounters assigned to
assembly work on Rex and Ivy heaters, also crated and shipped repair parts, and
performed such operations as drilling, tapping, the testing of water fronts, the
japanning of parts, black japanning, and grinding on the general line of company
products.
These were the individuals, then, previously represented by the Foundry Em-
ployees Union, who were now to be represented by the Molders." The Respondent
also employed several maintenance men at New Athens ; their representation in
1938 and thereafter, however, is not set forth in the record.
The situation established at New Athens by the extension of recognition to the
Molders outside of the foundry continued through 1946, without a significant
change. In 1944, the Manufacturers Protective and Development Association
changed its constitution and required the members of the Association to execute
a broader and more definite obligation, expressive of their intention to be
bound by the actions of the Association in the execution and administration of
Conference Agreements. In that year, also, the Association and the Molders
adopted an amendment to the Conference Agreement intended to define, in general
terms, the scops of the recognition given to the Molders. The amendment reads
as follows :
The Association recognizes the Union as the exclusive collective bargain-
ing agent for all employees in all such departments in the plants of the
members of the Association where the Union has a majority of the employees
in each such department. (In order for the Union to establish itself as
the exclusive collective bargaining agent under this agreement in any
department or departments of any member plant of the Association, it must
first submit a certified list of its membership to the Association) excluding
supervisory, clerical and sales employees, and excluding such employees
as are covered and are working under any separate collective bargaining
agreement with any other labor union.
The amendment, however, does not appear to have affected the relationship
between the Respondent and the Molders at the Respondent's New Athens plant.
In the meantime, at National Stockyards, between 1937 and 1945 the Respondent
negotiated its annual agreements with Local No. 52 of the Mounters, in joint
sessions at Belleville with several other stove companies. All of the firms
which participated in the joint negotiations, however, appear to have executed
12 These operations in the Sheet Iron Heater Department appear to have involved
employees in the following job classifications, common to New Athens and National Stock-
yards lathe drillers, pattern filers, riveters, spot welders, arc and acetylene welders,
cutters, punchers, breakers testers, stove repair men, experimental workers, and laborers-
a designation which apparently included "line feeders" who brought the required parts to
the departmental assembly line
13 The record indicates that the Molders made no objection, In 193S or at any time
thereafter, to the continued representation of the bench mounters in the Shipping and
Mounting Department by the Mounters.
AUTO STOVE WORKS 1213
individual agreements with the particular local of the Mounters recognized
by each."
Negotiations for the 1946 agreement between the Respondent and Local 52 of
the Mounters began in joint sessions of the type already noted. The union,
however, presented a set of additional demands with respect to the National
Stockyards plant ; and the failure of the parties to reach an agreement ultimately
led to a strike, which was not settled until September of that year" On Sep-
tember 6, 1946 a definitive copy of the agreement reached by the parties with
respect to the calendar year was offered to the Respondent for signature. Walter
P. Blum, its vice president, filled an appropriate blank for the designation of
the signatory company with "Auto Stove Works of National Stockyards, Illinois."
The union representatives, however, resisted this apparent attempt to restrict
the coverage of the agreement to National Stockyards and after some discussion,
the limitation was stricken. The agreement was then executed, as amended.
As in the past the agreement provided preferential employment for "members
in good standing coming properly under the jurisdiction of this Union." It
established wage rates for the following job classifications: (1) day-work
mounters on all classes of stoves, ranges and heaters, (2) horizontal lathe
drillers, (3) manifold men, (4) pattern fitters, (5) riveters, (6) spot welders,
(7) stove repair men, (8) experimental workers, (9) cutters, (10) punchers,
(11) breakers, (12) testers, (13) pattern fitters, (14) white metal work, (15)
repairing, (16) furnace mounters," (17) are and acetylene welders, (18) laborers,
(19) maintenance men, and (20) sprayers.
On October 2, 1946, a portion of the plant at National Stockyards was gutted
by fire. The Sheet Metal Department and that portion of the Shipping and
Mounting Department which shared the first-floor space utilized by the plant,
were completely destroyed. The only part of the National Stockyards plant,
then, which remained in operative condition was a section of the Shipping and
Mounting Department, which occupied an upper floor in a contiguous building.
The Respondent was required, of course, to lay off a substantial number of em-
ployees at the National Stockyards plant. Although some of these were later
recalled, progress in the reestablishment of production at National Stock-
yards appears to have been slow ; a substantial number of the regular employees
retained their status as laid-off employees throughout the period with which we
are now concerned 1'
The significant events with which we are concerned, subsequent to the fire,
began with the opening of negotiations on December 20, 1946 with respect to the
1947 agreement between the Respondent and Local No. 52 of the Mounters. The
initial conference was amicable; and the parties appear to ha-,e agreed, without
very much discussion, that wages for the 1947 calendar year would be deter-
mined on the basis of the results reached at the point Belleville conference for
that year, already noted. In the course of the discussion , however, union rep-
14 In one year, which is not identified in the record, the Respondent had no written
agreement with Local No. 52 of the Mounters.
15 The undisputed testimony of James M. Roberts indicates that George Wirth , Jr., the
secretary and treasurer of the Respondent, stated at one of the conferences which pre-
ceded the settlement of the strike , that when he "got ready" to make stoves he would
make them without "Stove Mounters " ; it is obvious that his intended reference was to the
labor organization involved in the negotiations then current.
16 There were no furnace mounters employed at the time in either of the Respondent's
plants
17 Of 45 non-supervisory production and maintenance employees on the pay roll at
National Stockyards before the fire, 34 were recalled; 11 retained their status as tempo-
rarily laid -off employees at the time of the events to be related.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentatives cited a rumor that the company intended to abandon the National
Stockyards plant and to consolidate its operations at New Athens. Vice Pres-
ident Blum , on behalf of the Respondent, disclaimed all knowledge as to the
basis of the rumor, and the conference appears to have adjourned without fur-
ther exploration of the matter.
In the meantime , some time in the third week of December, the Manufacturers
Protective and Development Association reached an agreement with the Molders
on the Conference Agreement for 1947, to become effective on January 1st of that
year. On December 31, 1946, therefore, the agreements then current between the
Respondent and the labor organizations with which we are concerned expired
by their terms, that of the Molders to be replaced by the 1947 Conference Agree-
ment and that of the Mounters to lapse without replacement.
Shortly after December 30, 1946, the rumor about the abandonment of the
National Stockyards plant received objective verification, when the Respondent
received a written notice from its landlord to vacate the plant on or before
April 1, 1947.
At or about the turn of the year, the Molders at New Athens, in conformity
with the practice established by the Conference Agreements, gave the Respondent
a certified list of their members as of January 1, 1947. The list, which covered
the Foundry Department, the Sheet Iron Heater Department, the Shipping and
Mounting Department and the watchmen, revealed that Earnest Engel, George
Schoepp, and Arkell Stehl, the bench mounters in the Shipping and Mounting
Department, had joined the Molders some time earlier, on a date which does
not appear in the record. The Respondent agreed forthwith to recognize the
Molders as the representative of these employees, in the belief that it was under
a legal obligation to do so.
The record establishes that James M. Roberts, a special representative of
the Mounters, upon being advised of this shift in allegiance on the part of the
bench mounters at New Athens, in a manner not now apparent, went to New
Athens to verify the information, and that the shift in their allegiance was
confirmed by Engel, Schoepp, and Stehl.
On January 10, 1947, the Respondent and Local No. 52 of the Mounters re-
sumed negotiations at the National Stockyards plant. The parties agreed, in
effect, to renew their 1946 agreement, with certain wage changes, the latter to
be determined upon the completion of the Belleville conference. A representative
of the Respondent read the notice it had received to vacate the National Stock-
yards plant, expressed the intention of the Respondent to seek an extension of
its occupancy, and went on to state that the firm would probably consolidate
its operations at New Athens when finally compelled to vacate the plant
in question." At the end of January, the respondent received a formal notice
to vacate its plant in National Stockyards, and a letter denying its request for
an extension of time beyond the first of April.
Thereafter, on February 3, 1947, representatives of the Respondent and a
committee of the Mounters met to sign a 1947 agreement. The Respondent
presented a contract which it wished to sign as "The Auto Stove Works of
National Stockyards, Illinois ." The union representatives, as in 1946, resisted
this suggestion on the ground that the Mounters would be signing away their
bargaining rights at New Athens and that they would secure recognition at
is Some time thereafter , on dates which do not appear in the record , a foreman at
National Stockyards told two employees at the plant who had carried membership cards
in the Molders that they would not have to worry about the availability of work for them
at New Athens , since they carried cards in the Molder's organization.
AUTO STOVE WORKS 1215
National Stockyards for only a month or more. The Respondent, however, in-
sisted on its language of limitation ; it was revealed for the first time that the
Respondent had already been told that the bench mounters at New Athens had
joined the Molders, and that it would have to deal with that organization for
all of the employees at its New Athens plant. No agreement was reached. The
testimony of Roberts with respect to the discussion in this connection reads
as follows :
Well, the company was asked in the event the work opened up in New
Athens and they moved to New Athens, Illinois, would the members of Local
No. 52 or the people that worked at National Stockyards, Illinois, be called
to work down there according to their seniority, called back into their jobs.
Mr. Blum wouldn't answer that question yes or no . . . Mr. Davis them
asked the question then, if the men from the National Stockyards, Illinois
plant went down to New Athens to work, would they have to join the Molders'
Union, and Mr. Blum answered in all probability that they would, but that
would be something to iron out between the Stove Mounters and the Molders'
Union.
On February 6, 1947, the parties met again, with Joseph Lewis, General Presi-
dent of the Mounters, in attendance. The discussion recapitulated that which
had occurred on the third of the month. In addition, however, the Respondent
was asked whether National Stockyards employees would be given preferential
employment at New Athens. The reply was in the negative ; representatives of
the Respondent stated that it was obligated to the Molders not to give a prefer-
ence to any person or persons not a member of that organization. The union
representatives then suggested that the Respondent sign an agreement in the
usual form, and that it permit the Mounters and the Molders to determine their
jurisdiction at New Athens by agreement. The Respondent rejected this sug-
gestion. Upon being advised of the situation, the Mounters voted to strike.
Picket lines were established at National Stockyards and New Athens, and pro-
duction at National Stockyards came to an end.
The evidence is in conflict as to the suggestions of the Respondent, designed
to end the impasse, at the conference on the sixth of February. Whatever the
situation may have been at that time it is clear that the Respondent stated its
position in a letter dispatched to the union on February 25, 1947. That letter,
insofar as it is material here, reads as follows :
So there will be no misunderstanding of our position in the unfortunate
controversy which resulted in the establishment of picket lines by your
labor organization at our National City and New Athens plants, we repeat
in this letter what we have heretofore stated :
1. We are willing to execute a written collective bargaining agreement
with your Union on the terms heretofore reached in our collective bargain-
ing with you which you terminated on February 6, 1947, and which agree-
ment shall apply only at our National City Plant ; provided your signing of
the same shall not be held or construed to be a waiver, or prejudice the
rights, of any of the parties to the existing controversy.
2. We will render such aid and assistance as may be required to the end
that the jurisdictional dispute now existing between your Union and the In-
ternational Molders' and Foundry Workers' Union of North America re-
lating to our New Athens Plant may be finally determined according to the
National Labor Relations Act and applicable laws ; by the International
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President of your Union and of the International Molders' and Foundry
Workers' Union of North America ; or by the Executive Council of the
American Federation of Labor.
The Mounters were advised, if they wished to accept the offer, to execute the
agreement in question by March 1, 1947, and to have their members who were
employed at National Stockyards on February 6, 1947 report for work there at
the usual time on the third of March. The union was informed, however, that if
the agreement was not executed, and if its members did not report for work on
the specified date, the Respondent would have to make "other plans" for an earlier
permanent closing of the plant at National Stockyards and terminate the employ-
ment of the workers there, as of March 3,1947.
The offer of the Respondent was not accepted. On March 3, 1947, therefore, the
Company dispatched to all of its employees at National Stockyards, including those
who had been at work when the strike began and those who had been on a lay-off
because of the fire at that time, a letter in the following terms :
For reasons beyond our control and with which you are fully familiar, we
have been compelled to permanently discontinue operations in our National
City plant and so we reluctantly advise you that your services as our em-
ployee are terminated as of this date.
The letter went on to advise the employees that retroactive pay, for services per-
formed in 1947, which would have been performed at a higher rate if the abortive
1947 contract had been executed by the Mounters, was being sent to them volun-
tarily. On March 26, 1947-in reply-the Mounters dispatched a letter to the
Respondent which set forth in detail the position of that organization. A copy
of the letter is appended to this report.
Thereafter, the Respondent successfully reestablished its consolidated operation
at New Athens, although about six months expired before the company's produc-
tion reached a normal level. Usable machinery was moved from National Stock-
yards to New Athens, and the firm was able, gradually, to replace the presses, the
shears, and the punch machines in its Sheet Metal Department, which had been
lost in the fire. As machinery became available, the Sheet Metal Department was
reestablished as a functional unit of the plant. Several employees skilled in the
work, about four in number, were transferred from the Sheet Iron Heater Depart-
ment to the newly established unit and unskilled workers were hired as new
employees.'9 The Shipping and Mounting Department was expanded and sub-
divided.2° Skilled employees, about eight in number, were transferred from the
Sheet Iron Heater Department to the reorganized Shipping and Mounting Depart-
ment. This group included track mounters (assembly line workers), cutters and
punchers. Unskilled workers, as in the case of the Sheet Metal Department, were
;employed locally.
The Respondent then attempted, successfully, to expand its assembly line opera-
lions in the Shipping and Mounting Department. Of the bench mounters previ-
ously employed at New Athens, one is still engaged in this activity, one performs
such work on a part-time basis, and one has been transferred to work as a track
mounter. None of the employees transferred from the Sheet Iron Heater Depart-
ment have been assigned to work as bench mounters. With the exceptions noted,
19 The record indicates that these employees were recruited in the immediate vicinity
of New Athens. None of them, it would appear lived in the East St. Louis or National
Stockyards area.
m A separate building for the purpose being available , all japanning work was shifted
to it and physically separated from other functions performed in this department.
AUTO STOVE WORKS 1217
therefore, the expansion of the Shipping and Mounting Department at New
Athens to accommodate the Respondent's entire line of production was based
entirely upon the expansion of its assembly line .21
None of the former production and maintenance employees at National Stock-
yards has been offered or received employment at the New Athens plant. The
only transferees, in fact, were five supervisors at National Stockyards, each of
whom is now a supervisor at New Athens." The firm, which had employed 160
men at New Athens in the period from 1920 through 1928, and an average of 60 at
National Stockyards together with 85-100 at New Athens in the period from 1929
through 1946, now employs between 120 and 130 men at New Athens." George
Wirth, Jr. testified without contradiction that the entire expansion of the staff
at New Athens was accomplished by recruitment in the immediate vicinity of that
community.
B. Conclusions
1. The Refusal to Bargain
a. General considerations
A determination of the issues involved in the instant case depends, in the final
analysis, upon the application of certain concepts fundamental in the law. Of
these, perhaps the most significant is a proposition that the statutory obligation
of an employer to bargain is dependent upon the right of the labor organization
involved to claim representative status on behalf of employees in an appropriate.
unit, at the time of its request to bargain. Conversely, there can be no breach
of the statutory obligation unless it is established that the union in question repre-
sented a majority of the employees in an appropriate unit at the time of the
events relied upon to establish a refusal to bargain. It is the date of the conduct
which is the subject of the complaint which determines the time at which the
union's status, and the appropriateness of the unit, must be tested. Only if the
union is found to represent the majority of the employees in an appropriate unit
on that date does any question arise as to the way in which a respondent employer
niet its obligations under the Act.
The complaint in the instant case alleges that the Respondent refused to bargain
with the Mounters, although requested to do so, as the exclusive representative of
the employees in an appropriate unit, on or about September 6, 1946. That was,
however, the date on which the parties reached agreement, after a strike, with
respect to their reciprocal rights and obligations for the 1946 calendar year.
It is true that the negotiators for the Respondent, on that date, did offer a
document for signature which, by implication, limited the representation of the
union to the National Stockyards plant, and it is true that this attempt 'to limit
the scope of the unit did inject a substantial issue into the negotiations at the
eleventh hour. A prompt objection on the part of the union representatives,
however, resulted in the deletion of the limitation. It is clear that no impasse
developed as a result. Thus, although it may also be true that some of the discus-
sion which preceded the execution of the agreement had been acrimonious, there
"Productive operations at New Athens. therefore, now involve a Foundry Department,
a Shipping and Mounting Department, a Sheet Metal Department , a Plating Department,
a Japanning Department, a Sheet Iron Heater Department, a maintenance man and
several watchmen.
22 The individual previously employed as a foreman in the Shipping and Mounting
Department has been demoted to the position of a stock room clerk.
23 A current pay roll , received in evidence , lists 110 men.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no indication that the acerbity of the language they employed interfered with
the ability of the negotiators to reach the final settlement noted.
Upon the entire record, the undersigned finds no merit in the contention that the
1946 negotiations were marked by conduct subject to characterization as evidence
of a refusal to bargain.
The negotiations with respect to a 1947 contract, with which we are then pri-
marily concerned, did not reach an impasse until after several conferences. Al-
though rumors in regard to the possible termination of production at National
Stockyards were mentioned on the 20th of December, when the negotiations began,
the discussion was exploratory only ; the conference, in the large, was amicable,
and it appears to have been marked by significant progress with respect to the
achievement of a final agreement. On January 10, 1947, when the negotiators
next met, the officials of the Respondent confirmed the rumor that the plant at
National Stockyards would be closed. In spite of this announcement, the discus-
sions with respect to a 1947 contract proceeded, and the record indicates that an
oral agreement was reached. Certainly, nothing in the record, up to this point,
suggests that the Respondent had breached any statutory obligation. While the
Respondent may have been guilty of an error in judgment, by virtue of its failure
to mention the change in the union allegiance of the bench mounters at New
Athens, of which it was already aware, the record is barren of any suggestion
that the Respondent was guilty of procrastination, intransigence or bad faith in
connection with the negotiations-and the undersigned finds no merit in the con-
tention that its conduct involved a breach of any statutory obligation to bargain.
The 1947 negotiations, however-up to this point-did not involve any question
as to the appropriate unit for which the Mounters were entitled to recognition, even
though such a question was implicit in the situation created by the change in the
union allegiance of the bench mounters and the imminent prospects in regard to
the termination of production at the National Stockyards plant. The issue did
not arise until February 3, 1947, when the Respondent presented a draft agreement
in which it was designated, again, as the Auto Stove Works of National Stockyards,
Illinois, seeking once more to limit the scope of the Mounters unit by implication.
This was, and is, the issue on which the negotiations foundered. It involved the
only overt action by the Respondent which could be said to provide the basis of the
complaint-the only action, therefore, to be tested, to determine whether or not it
ought to be characterized as a breach of the obligations established by the Act.
As noted, it is the configuration of the collective bargaining unit on the date of
the conduct in question, and the representative status of the union in the unit on
that date, which fixes the obligation of an employer under the statute. The signifi-
cant date in the instant case having now been determined, these preliminary
aspects of the issue must be decided before any attention is paid to the ultimate
question of whether the Respondent was guilty of conduct subject to characteriza-
tion as a refusal to bargain in good faith. To the consideration of these funda-
mental matters, then, the undersigned now turns.
b. The appropriate unit and the obligation to bargain
In 1946, the Mounters were recognized, without any qualification by the
Respondent, as the exclusive representative of the employees in the unit now
alleged to be appropriate :
All production and maintenance employees at Respondent's National
Stockyards, Illinois, plant, and all of the stove mounters at Respondent's
AUTO STOVE WORKS 1219
New Athens , Illinois , Plant, excluding all other employess , office employees
and supervisory employees , as defined in the Act , and Act as amended.
Their right to act as the exclusive representative of the employees in this unit
was not challenged for the duration of the 1946 contract. While the unit in
which they were recognized , as defined , must be characterized as something of an
anomaly since it involved the amalgamation of an industrial unit at National
Stockyards and a craft group at New Athens, the Respondent and the Molders
do not contend , and the undersigned does not find , that such an anomalous unit
was inherently inappropriate . It had been established by a collective bargain,
and the record contains no evidence that the Foundry Employees Union or the
Molders ever objected to the exclusion of the bench mounters at New Athens
from the appropriate units there." The arrangement in sum, was clearly sanc-
tioned by the practice of the parties.
These observations , however , are not determinative of the issue . The bench
mounters at New Athens changed their union allegiance on January 1, 1947
at the expiration of the Mounters ' 1946 contract . In so doing , they expressed
a desire to be excluded from any unit in which the Mounters might be entitled to
recognition and to be included in the unit which the Molders were entitled to
represent . Their change in affiliation was made effective at an appropriate time,
when the current agreement , under which they did their work , expired. The
General Counsel does not contend that the shift in their union membership was
induced by any action of the Respondent , or that it involved any unfair labor
practice-and the undersigned finds no basis for any such conclusion." It is
contended , however , that the bench mounters at New Athens were part of an
appropriate unit which included the production and maintenance employees at
the National Stockyards plant, and that the action of the Respondent in recog-
nizing the Molders as their exclusive representative after the 1st of January
involved a unilateral determination that their change in allegiance was effective,
in and of itself , to transfer them from the Mounters unit to that of the Molders.
The General Counsel contends that the Respondent acted at its peril when it
made that unilateral determination 36
While it may be true that an employer acts at its peril when it makes a uni-
lateral determination as to the appropriateness of a collective bargaining unit,
the undersigned cannot agree that the unilateral action of this Respondent, as
described , was erroneous as a matter of law. If the Board had been asked to
determine , in a representation proceeding , which of two units, otherwise ap-
propriate , ought to include the bench mounters , it might well have decided that
theoretical considerations , sufficient to justify a disposition of the matter, could
be cited in favor of either decision which might be made ; in such cases, it has
been the practice of the Board to rest its ultimate unit determination upon the
desire of a majority in the employee group , as expressed in a secret ballot.
Certainly , the Respondent cannot be censured , therefore , for its determination,
on the basis of substantially similar evidence , that the change in the affiliation
24 A provision that particular craft employees , covered by separate collective bargaining
agreements and assigned to work in a department represented by the Molders, could insist
on exclusion from the association -wide Molders unit, and on representation by their own
labor organization , appears in the coverage clause of the Conference Agreements.
25 The record, alternatively , warrants an inference that the bench mounters changed
their union allegiance , in fact , because the pay they could expect to receive if covered by
the Conference Agreement for 1947 would exceed their rate of pay under the 1946 agree-
ment between the Mounters and the Respondent , in a substantial amount.
36 Cf. N L . R. B. v. The Piqua Munising Wood Products Co., 109 F . ( 2d) 552 ( C. C. A. 6) ;
Matter of Palm Beach Broadcasting Corp ., 68 N. L . R. B. 597.
829595-50-vol. 81-78
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the bench mounters was sufficient to excise them from the unit represented
by the Mounters and to warrant their incorporation in the Molders unit instead.
Such a conclusion seems particularly sound when the situation is examined in
the light of the Conference Agreement and its flexible coverage clause, which
was clearly effective to envelop the bench mounters , as a matter of law, upon
their "escape" from the Mounters unit when the annual contract of the latter
organization expired.
The undersigned , therefore, finds no merit in the contention that the Respond-
ent was guilty of a refusal to bargain when it refused to negotiate with the
Mounters in connection with the employment of the bench mounters at the New
Athens plant.
The General Counsel contends, however, that the Respondent was under an
obligation, when the prospect of an end to production at National Stockyards
became apparent, to bargain with the Mounters in regard to the availability of
employment at New Athens, thereafter, for the workers displaced at the National
Stockyards plant." The undersigned believes this contention to be without
merit. Upon occasion, it is true, the Board has found that the attempt on the
part of an employer to remove a business enterprise or productive operation, and
the concomitant refusal of the employer to discuss the transfer of the affected
employees with their exclusive representative, constituted an illegal refusal to
bargain." However, its conclusion, in such cases, that the employer was involved
in a violation of the Act, has invariably been based upon the subsidiary conclusion
that the attempted removal was motivated by a desire on the part of the employer
to avoid his obligation to bargain. No such suspect motivation is present here2°
The projected removal of the Respondent to New Athens was the result of a sit-
uation for which it was not responsible, the fire at National Stockyards and the
decision of the property owner to terminate the Respondent' s lease at the plant in
question. The present record contains no probative evidence to support the con-
clusion that the Respondent wished to terminate its contractual relation with the
Mounters. The undersigned concludes and finds, instead, that the Respondent
decided to abandon its National Stockyards operation for business reasons, and
that it was not motivated, in any way, by antipathy to the Mounters or by
any desire to assist the Molders at its New Athens plant. In a case which in-
volved somewhat similar questions ,30 the Board described its decisional policy as
follows :
The Board has recognized that its finding with respect to the appropriate
unit in a particular business may subsequently become inappropriate due to
changes in the business structure, operational methods of the employer, or
the extent of union organization among the employees. Thus, where con-
version of a factory from peacetime to war production has produced funda-
mental changes in the employer's manufacturing operations, the Board has
found that previous bargaining units, although appropriate when established
lost their identities and may no longer be considered appropriate. Since
27 Cf. Matter of Brown-McLaren Mfg Go, and Hamburg Mfg. Co., 34 N. L. R. B. 984,
1007-1009
2" Matter of Howard Rome, et al, 77 N. L. R. B 1217, and the cases therein cited.
29 Here, the Respondent had a contract with the Molders at the New Athens plant. Upon
the entire record, and for the reasons cited elsewhere in this report, the undersigned
finds that it might well have believed in entire good faith, as it contends, that the flexible
coverage clause of that agreement precluded it from extending any recognition to the
Mounters as the spokesman for employees to be hired at New Athens.
30 Matter of Mahoning Mining Company , 61 N. L R. B. 792, 803.
AUTO STOVE WORKS 1221
changing conditions in industry necessitate revision of bargaining units which
will best effectuate the policies of the Act, the Board has never held that once
it has established an appropriate unit for bargaining purposes , an employer
may not in good faith, without regard to union organization of employees,
change his business structure, sell or contract out a portion of his opera-
tions, or make any like change which might affect the constituency of the
appropriate unit without first consulting the bargaining representative of
the employees affected by the proposed business change.
These considerations are appropriate here. The record in the instant case, as in
the precedent cited, reveals that the Respondent changed its methods of opera-
tion for economic reasons. Upon that record, the undersigned concludes and
finds that the Respondent did not breach any statutory obligation to bargain
with the Mounters by its refusal, under the circumstances present here, to discuss
the transfer to New Athens of workers who would be deprived of employment
upon the cessation of operations at the National Stockyards plant.
The argument of the General Counsel implies, if it does not expressly include, a
further contention that the Respondent was guilty of a refusal to bargain when
it made the unilateral determination, (1) that the expansion of its operation at
New Athens would involve an expansion of the unit in which the Molders were
entitled to recognition, and (2) that the Mounters would not be entitled to some
recognition at New Athens, as a matter of right. This contention, in essence,
rests upon the subsidiary contention that the expansion of the New Athens
plant would involve the establishment of departmental functions clearly outside
the scope of the existing Molders unit 51 Preliminary consideration of the con-
tention, therefore, requires that the validity of this subsidiary contention be
tested. To this question, then, the undersigned now turns.
Essentially, the reorganization of production at New Athens was expected to
involve, and did involve, the addition of a Sheet Metal Department devoted to
the fabrication of sheet steel parts for the general line of the company exclusive
of air-tight heaters, the expansion of the Shipping and Mounting Department by
the addition of "track" and bench assembly work on the general line of the
company exclusive of air-tight heaters, and the establishment of a Japanning
Department in which certain functions previously performed at National Stock-
yards and the New Athens plant would be commingled. Upon the entire record,
the undersigned does not believe that these additions to the establishment at
New Athens could be expected to involve functions so distinguishable as to be out-
side the scope of the existing bargaining unit there.
The record establishes that the employees in the Sheet Iron Heater Department
at New Athens have always been required to fabricate sheet steel parts used in
the manufacture of air-tight heaters, and that they have in addition fabricated
sheet steel parts for the general line of company products. It would seem to
follow that the Sheet Metal Department which the Respondent proposed to
establish at New Athens would be functionally indistinguishable; its work, in
sum, could be expected to duplicate that of the employees in the Sheet Iron
Heater Department, the sole distinction being that the work of employees in
the new department would be limited to the general line of company products
31 Counsel for the Respondent and the Molders construe the argument of the General
Counsel to Include a contention that the Mounters are entitled to "carve" a bargaining unit
coextensive with their jurisdiction out of the bargaining unit now represented by the
Molders. If that were the actual contention made it would clearly be erroneous, as a
matter of law. Matter of Kalamazoo Stove and Furnace Company, 61 N. L. R. B. 1041.
The undersigned , however, does not so understand the General Counsel 's contention.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive of air-tight heaters. In the Shipping and Mounting Department, the
Respondent's expansion program could be expected to involve the creation of an
assembly line at which the general line of company products exclusive of air-tight
heaters would be assembled. Other employees in the department would be
expected to crate and ship such products in addition to their previous work in
connection with the shipment of air-tight heaters. Such additional duties, how-
ever, could not be described as functionally distinguishable from their former
work. While it could be anticipated that the volume of the work. they did on
stove and heater parts, as set forth in the record, would expand, the character of
:he work would clearly remain substantially unchanged." It seems obvious,
therefore, that the expansion of activity at New Athens could be expected to
represent, and did represent-in substance-an expansion of the functions which
had been performed regularly by the employees in the Molders unit, and that it
did not involve the establishment of departmental activity distinguishable from
that in which the employees were regularly engaged.88
Upon the entire record, then, the undersigned concludes and finds that the
program of the Respondent involved an expansion at New Athens of the bargain-
ing unit in which it was obligated by contract to recognize the Molders,` and
that the Respondent's construction of its contractual obligation did not involve
it in a breach of its obligation to bargain with the Mounters.
Even if it were to be assumed, for the purposes of argument, that the operations
which the Respondent planned to reestablish at New Athens were functionally
distinguishable from the operations already performed there, it cannot be said
that the Respondent was under any obligation to recognize the Mounters, at the
outset, as the representative of employees engaged in the new activity. It should
be noted that the question of recognition, when it was first discussed-in Feb-
8' The Japanning Department which the Respondent planned to establish-and did
establish-in separate premises, was not intended as a new department at New Athens ;
the record establishes that japanning in connection with the general line of the company
had been a regular function of employees in the Shipping and Mounting Department there.
's The General Counsel makes no contention that the expansion program at New Athens
could be expected to involve , or that it did involve, specific craft activity. In any event,
the record is clear that the operations subject to reestablishment at New Athens were not
limited to the activity of a specific craft, as the term is generally understood . No basis,
then, exists for any division in the existing unit at New Athens on this ground . Cf. Matter
of Todd-Bath Iron Shipbuilding Corporation, et al., 45 N. L. R. B. 1367; Matter of The
Trailer Company of America , 51 N. L. R. B. 1106; Matter of General Plate Division of
Metals and Controls Corporation, 71 N. L. R. B. 936.
'{ To the extent that the claim of the Mounters envisioned a restoration of the unit
division which had existed in the period from 1920 to 1928 it might be described as a
colorable claim ; the record , however, reveals that the unit division recognized at the time
was based upon the departmental organization of the Respondent , that the division lacked
any functional justification, and that it had been substantially obliterated at New Athens
in 1929 and thereafter . It is clear that any attempt to restore such a unit division at
present would involve a purely ad hoc determination , without justification in logic or law.
With respect to a similar argument in the Matter of the Trailer Company of America, 51
N. L. R. B . 1106 , the Board once stated :
Essentially , the employees of the Companies have constituted two clearly identifiable
bargaining groups, but the progressive merging of the physical operations of the
Companies is serving to erase the lines of demarcation . The Highland employees are
being transferred to the Trailer plant and payroll and are thereby losing their separate
identity . The return now to the originally separate units would permit employees
of the same skills, performing the same duties for the same employer to designate
separate bargaining representatives , contrary to the dictates of sound policy. .. .
The progressive physical merger of the operations of the Companies renders imprac•
ticable and unworkable the designation of separate bargaining units using as a guide
the antecedent employment relations of the employees to the Companies.
AUTO STOVE WORKS 1223
ruary-anticipated the cessation of operations at National Stockyards and the
establishment of these operations at New Athens. The claim of the Mounters
was then grounded in the theoretical jurisdiction of that organization only ; it
did not rest upon the actual representation of employees engaged, or to be
engaged, in the productive operations transferred. The Board has never held
that an employer is obligated , or entitled , to recognize a union as the exclusive
representative of employees not yet hired, in a unit not yet organized ; its
decisions indicate, rather, that any attempt on the part of an employer to extend
recognition to a union , under the circumstances , would be characterized as an
unfair labor practice.
Upon the assumption described above, meticulosity in the observance of itst
obligations under the Act might have suggested to the Respondent that it would
be advisable to withhold recognition from any labor organization with respect to
the operations which would be affected by the expansion program at New Athens
until after the program had been made effective. The record shows that the
Respondent did assume that it was under a contractual obligation to recognize
the representative status of the Molders. In this, the Respondent did run the
risk that its assumption might be considered gratuitous and based upon a mis-
conception of the facts and the law. The record, however, also shows that the
Respondent suggested to the Mounters its willingness to withhold a determination
with respect to the unit division of the expanded operations at New Athens until
after a decision by the Board on the issue, and/or a determination as to the
jurisdiction of the rival unions, pursuant to mutual agreement or an award
of the AFL Executive Council. This suggestion, in the opinion of the under-
signed, was an earnest of the Respondent's good faith, and its genuine desire
to seek an agreed solution to a difficult practical problem. It was rejected by
the Mounters.
Upon the entire record then, and assuming, arguendo, that the expansion
program at New Athens might have involved the establishment of a new appro-
priate bargaining unit, the undersigned concludes and finds that the Respondent
was not guilty of an illegal refusal to bargain when it refused to recognize the
Mounters, before the reorganization of its production, as the exclusive repre-
sentative of employees in a bargaining unit, alleged to be appropriate , which had
not yet come into existence.
2. The alleged lockout of the employees at the National Stockyards plant and
other interference , restraint or coercion alleged.
The undersigned has found that the Respondent did not breach its statutory
obligation when it refused to recognize the jurisdictional claim of the Mounters
at New Athens. It follows, therefore, that the walkout at National Stockyards,
on February 6, 1947-which was intended to implement the claim of that organi-
zation-was not an unfair labor practice strike; it must be characterized,
instead , as an attempt to compel action by the Respondent contrary to its
contractual obligation to the Molders and its obligations under the statute. So
construed , it represented concerted action for a purpose in contravention of the
statutory policy.'' The subsequent decision of the Respondent, then, on March 3,
1947, to anticipate the required cessation of its operations at National Stock-
yards, and to terminate the employment of the strikers and its other temporarily
16 C. Matter of Thompson Products , No., 72 N. L. R. B. 886.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off employees, cannot be characterized as discriminatory, or as intended
to discourage membership in a labor organization."
The statement attributed to George Wirth, Jr., in September of the previous
year, that he intended to manufacture stoves without "Stove Mounters," which
stands without contradiction in the record, appears in its context as an isolated
statement, made in the heat of collective negotiation during the pendency of a
strike. Upon the entire record, the undersigned does not believe it to be
indicative of a basic antipathy to the Mounters or an attitude of opposition
to the objectives of the Act. The subsequent willingness of the Respondent to
execute an agreement in settlement of the strike, and its obvious willingness to
negotiate an agreement with the Mounters for the calendar year to follow serves
to rebut any possible contention that the remark in question was intended to
interfere with, restrain or coerce the employees of the Respondent, or their
chosen representative-and the undersigned so finds.
The remarks of Foreman Joffray, to which reference has been made, to the
effect that particular employees at National Stockyards would have no difficulty
in securing employment at New Athens after the operation of the Respondent's
plant was reorganized, were consistent with Respondent's interpretation of its
obligation under the Conference Agreement. Its interpretation, in the opinion
of the undersigned, was sound-and it cannot be said, therefore, that statements
consistent with that interpretation involved illegal assistance to the Molders
or that they interfered with, restrained or coerced employees in the exercise of
rights guaranteed by the Act.
3. Summary
Upon the entire record, therefore, the undersigned concludes and finds, con-
trary to the contentions of the General Counsel, that the Respondent has not been
guilty of an illegal refusal to bargain, or of any other unfair labor practice. It
will be recommended that the complaint be dismissed.
Upon these findings of fact, and upon the entire record in the case, the under-
signed makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent, Auto Stove Works, involve trade, traffic,
and commerce among the several states and affect commerce within the meaning
of Section 2 (6) and (7) of the original Act and the Act as amended.
2. Stove Mounters International Union of North America, Local No. 52, AFL,
and the International Molders and Foundry Workers Union of North America,
affiliated with the American Federation of Labor, are labor organizations within
the meaning of Section 2 (5) of the original Act and the Act as amended.
3. The Respondent has not engaged in unfair labor practices within the
meaning of Section 8 (1), (3) and (5) of the original Act, and Section 8 (a) (1),
(3) and (5) of the Act as amended.
m Cf Matter of Brown-McLaren Manufacturing Company , 34 N. L . R. B. 934 , 1009-1011.
Even assuming , arguendo , as the General Counsel contends , that substantially all the
employees temporarily laid off or on strike held membership in the Mounters , the record
is barren of any basis for an inference that this was an operative fact in connection with
the Respondent ' s decision to close the National Stockyards plant.
AUTO STOVE WORKS
RECOMMENDATIONS
1225
Upon these findings of fact and conclusions of law the undersigned recommends
that the complaint against the Auto Stove Works, New Athens , Illinois, be
dismissed in its entirety.
All parties are advised that upon the filing of this Intermediate Report and
Recommended Order and the service of copies upon the parties-as provided
in Section 203.45 of the Rules and Regulations of the National Labor Relations
Board, Series 5, as amended, effective August 18, 1948-the Board will enter
an order transferring the case to itself, and will serve a copy of the order
upon each of the parties , setting forth the date of the transfer.
The parties are advised that any party may, within twenty (20) days after
the date of service of the order transferring the case to the Board , file with the
Board, Rochambeau Building, Washington 25, D. C.-pursuant to Section 203.46
of the Rules and Regulations-an original and six copies of a statement in
writing setting forth exceptions to the Intermediate Report and Recommended
Order or to any other part of the record or proceeding ( including rulings upon
all motions or objections ), together with the original and six copies of a
brief in support of the exceptions . Any Statement of Exceptions and brief
must designate by precise citation the portions of the record upon which the
party filing relies. Matters not included in the Statement of Exceptions may
not thereafter be urged before the Board, or in any further proceeding under
the Act. Any party also may, within the same period, file an original and six
copies of a brief in support of the Intermediate Report and Recommended Order.
Immediately upon the filing of such a Statement of Exceptions and supporting
brief , or the filing of a brief in support of the Intermediate Report and Recom-
mended Order , the party filing any such document shall serve a copy of it
upon each of the other parties . Proof of service upon the other parties shall
be promptly made, as required by Section 203.85, with respect to all papers
filed with the Board.
Should any party desire permission to argue orally before the Board , a request
for such permission must be made in writing to the Board within ten (10) days
after the date of service of the order transferring the case to the Board.
The parties are further advised that , in the event no Statement of Exceptions
is filed, as provided by the Rules and Regulations , all objections and exceptions
to this Intermediate Report and Recommended Order shall be deemed waived
for all purposes-as provided in Section 203.48 of the Rules and Regulations-
and the findings, conclusions and recommendations contained in it shall be
adopted by the Board and become its findings , conclusions and order.
Dated September 16, 1948.
MAURICE M. MILLER,
Trial Examiner.
APPENDIX
MARCH 26, 1947.
AUTO STOVE COMPANY,
East St. Louis, Ill.
(Attention: Mr. Walter P. Blum, Vice President)
DEAR SIR: This will acknowledge receipt of a copy of your letter of February
25, 1947 addressed to the members of the Shop Committee of Local No. 52 of
the Stove Mounters Union, in which you state your position on certain matters
in controversy . Since the receipt of this letter , it has come to our attention
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that on March 3 , 1947 a letter was sent to all of the employees of the National
City Plant of Auto Stove Works purporting to terminate their employment.
So there will be no misunderstanding of the position of this organization in
regard to recent developments , you are advised of the following :
1) During the negotiations on the contract for 1947 with our organization,
your refusal to recognize Local No . 52 as the bargaining agent for the entire
bargaining unit for which it had contracted each year since 1937 was an unlawful
refusal to bargain in violation of the National Labor Relations Act and accord-
ingly we have filed charges with the National Labor Relations Board.
2) Prior to these conferences and without any notice of our Union, you had
already recognized the Molders Union as the bargaining agent for the Stove
Mounters working in your New Athens Plant in spite of the fact that all of
your employees engaged in this type of work for many years had been represented
by our Union. At the time you attempted to split off these job classifications
from our unit and place them in the molder's unit you knew that your National
City Plant would be shut down within a few months. It was reasonable to
believe and, we did believe, that your Company would, after the shut-down of
the National City Plant, move some of all of the National City operations back
to the New Athens Plant. During these conferences our representatives tried
to find out what your plans were in regard to the transfer of the National City
jobs to New Athens after the shut-down but your representatives refused to say
what plans you had for future operations. It was our position then and it is
our position now that the terms and conditions of transfer of our members'
jobs from National City to New Athens was a subject of collective bargaining
and we were willing to bargain with you on this issue but were prevented
from doing so by your refusal to inform us of your future plans of operation.
3) Your actions in turning the New Athens stove mounters over to the Molders
Union and limiting recognition of our Union to the National City Plant which
would soon shut down was for the purpose of destroying our entire bargaining
unit, avoiding bargaining with our Union on the transfer of the National City
jobs to New Athens and escaping your legal obligation to offer such New Athens
jobs to our members on the closing of the National City Plant. Faced with this
situation our organization had no choice but to refuse the limited recognition
which you offered during the bargaining conferences and when you refused to
change your position, we were forced to strike to prevent the complete destruction
of our local Union and its bargaining unit.
4) On February 20, 1947, representatives of the Regional Office of the National
Labor Relations Board in my presence asked Company representatives whether
they intended to completely discontinue the operations carried on at the National
City Plant or transfer them to the New Athens Plant when the National City
premises were vacated. Your representatives refused to state what plant you
had for the continued operations of this part of your business . This again made
it impossible for our organization to request any bargaining with you on the
terms of the transfer of our members' jobs . At this same conference you were
asked whether it was your intention to require membership in the Molders Union
on the part of any new or transferred workers, in the Mounting Department at
New Athens . You said that this was your intention . By these statements you
made it clear that it was your purpose to destroy our Union in Favor of the
Molders Union.
5) By your letter of February 25, 1947 , you made the same offer of limited
recognition which you had previously made in conferences and asked our Shop
Committee as well as the individual employees to call off their strike on your
AUTO STOVE WORKS 1227
terms-terms which would mean the end of our bargaining relationship on the
shut-down of the National City Plant. In the letter you say that the whole
matter is a "jurisditional dispute" between our Union and the Molders Union
when the fact was, and is , that there was no jurisdictional dispute other than
the one made by yourself in trying to drive our Union completely out of your
plants. At the time of this offer, our organization , to your knowledge, had
already filed unfair labor practice charges with the National Labor Relations
Board and your statement that you would "aid and assist" the Board in finally
determining the dispute was contrary to your position taken before the agents
of this Board on February 20. The suggestion in your letter that the Interna-
tional Presidents of our Union and the Molders Union or the Executive Council of
the AFL decide the "jurisdictional dispute" is rejected for the obvious reason that
there can be and is no jurisdictional dispute concerning the legal bargaining
rights of the employees whom we represent . Before you turned over the New
Athens mounters to the Molders Union , you did not refer any doubt you might
have had concerning the bargaining unit to the National Labor Relations Board,
the AFL or anybody else , but decided the question for yourself and presented it
to our Union as a closed matter.
6) At the time you attempted to discharge all of the National City employees
represented by our Union you were taking steps to transfer their jobs back to
the New Athens Plant. The job openings for mounters belong to our National
City members and as their bargaining representative we hereby request you to
cancel the discharge of these men and bargain with us for their transfer to jobs
at New Athens as those jobs open up , if you refuse to reinstate these men and
bargain with us on their transfer our Labor Board charge will be amended to
include the dismissal of these men as an unfair labor practice.
7) In line with our rights as bargaining agent , we hereby offer to withdraw
our picket lines from your New Athens Plant if you will agree with us to offer
our National City workers preferential hiring as jobs open up in the Mounting
Department at New Athens. On our part we offer to furnish sufficient compe-
tent workmen to fill such jobs . In making this offer and requesting bargaining
with you concerning the details of transfer of our people we want it distinctly
understood that on the transfer of our workers they will remain members of our
Union , not be forced into the Molders Union , and we will continue to be their
bargaining agent as well as the bargaining agent for the jobs at New Athens pre-
viously covered by our contracts.
Throughout this dispute we feel that we have asked for nothing more than
the law allows us. Trusting that your Company will grant to us and our mem-
bers our legal rights without the necessity of long drawnout legal proceedings
to establish them, we await your reply.
Yours truly,
(S) Joseph Lewis,
J0sEPH Lewis,
General President Stove Mounters' International Union
of N. A., A. F. of L.