Clegg Machine Works

National Labor Relations Board - Board Decisions

Jan 11, 1961

129 N.L.R.B. 1243 (N.L.R.B. 1961)

CLEGG MACHINE WORKS 1243
Upon the entire record in this case, we find that the following em-
ployees constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act: All pro-
duction and maintenance employees at the Employer's La Mirada,
Bandini, and San Fernando locations including the shipping and
receiving employees, leadmen,21 machine shop employees, welding de-
partment employees, structural assembly department employees, me-
chanical assembly department employees, finishing department
employees, cutting and forming department employees, burning de-
partment employees, barrel and frame department employees, assem-
bling and mounting department employees, special products
department employees, stores department employees, the mainte-
nance department employees,28 production control department em-
ployees, material control department employees, parts department
employees, service department employees, used truck department
employees, construction machinery department employees, customer
service department employees, and development shop employees,"
but excluding the draftsmen, engineering aides, blueprint librarian,
specifications writer, tabulating department employees, purchasing
department employees, office clerical employees, watchmen, guards,
professional employees '21 technical employees, and supervisors as de-
fined in the Act.
[Text of Direction of Election omitted from publication.]
25 At the hearing the parties stipulated that the 16 employees classified as leadmen in
the mechanical assembly department , finishing department , welding department , assem-
bling and mounting department , special products department , barrel and frame depart-,
ment, maintenance department , stores department , and structural assembly department
are not supervisors within the meaning of the Act and should be included within the unit.
The parties stipulated that the maintenance employees including two janitors at
La Mirada and one janitor at Bandini should be included in the unit.
27 The parties stipulated that all seven employees from the development shop are
properly included in the unit.
28 The parties also stipulated that the six product engineers , the one sales engineer, and
the specifications specialist of the engineering department are professional employees and
should be excluded , and that the two chief engineers are professional employees and
supervisors and therefore should be excluded from the unit.
Mark R. Clegg and Mary M. Clegg d/b/a Clegg Machine Works
and District Local No. 71, International Association of Ma-
chinists , AFL-CIO and Lodge No. 1, Clegg's Independent
Machinists, C.I.M. Case No. 17-CA-1484. Januai'y 11, 1961
DECISION AND ORDER
On March 28, 1960, Trial Examiner John Dorsey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
129 NLRB No. 154.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the General Counsel and
the Respondent filed exceptions to the Intermediate Report and briefs
in support thereof.
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-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings,' conclu-
sions, and recommendations, as modified below.
The Respondent and District Lodge No. 71, International Associa-
tion of Machinists, hereinafter called the Union, had maintained a
continuous contractual relationship since 1953. The most recent con-
tract, which contained a union-security clause, expired on Friday,
July 31, 1959. As set forth in detail in the Intermediate Report, the
Respondent on Monday, August 3, 1959, proceeded to determine the
name , draw the charter and choose the one officer of Clegg's Inde-
pendent Machinists, hereinafter called the C.I.M. Moreover, the Re-
spondent filed an RM petition on August 3, 1959, naming therein the
Union and the C.I.M. During the pendency of this petition-on
August 7, 1959-Respondent entered into an agreement with the
C.I.M. granting it exclusive recognition and a union-security clause.
The agreement was consummated after minimal discussion. The con-
tract, included therein a wage increase 50 percent higher than the
increase requested by the C.I.M. This increase was made retroactive
without any request for such action. All this was done during the
pendency of the Respondent's petition and before the C.I.M. had
demonstrated that it represented a majority of Respondent's employees
in the appropriate bargaining unit. Under these facts, we find that
the Respondent organized, and determined the nature, structure, and
form of the C.I.M. Indeed the record discloses no independent basis
for the existence of the C.I.M. apart from that bestowed by the Re-
spondent. A realistic appraisal of the facts compels the conclusion
1 We note and correct the following inadvertences appearing in the section of the Inter-
mediate Report entitled "Statement of the Case" : (a) In the last sentence of the first
paragraph , "8(2)" should be "8(a)(2)"; (b ) in the second sentence of the third para-
graph, "CIO" should be "C .I.M." Correction of these minor inadvertences does not affect
the validity of the Trial Examiner 's findings , conclusions , and recommendations which
we adopt.
CLEGG MACHINE WORKS 1245
that the Respondent dominated the C.I.M. and thereby violated Sec-
tion 8 (a) (2) of the Act.'
We further find, in agreement with the Trial Examiner, that the
Respondent violated Section 8(a) (5) and (1) of the Act, as detailed
in the Intermediate Report. The Respondent's hasty action, upon
expiration of its contact with the Union, in setting up a dominated
C.I.M. and concluding an agreement with it without knowledge of
its majority status, which in fact the C.I.M. did not have, compels the
conclusion that the Respondent was attempting to avoid its obliga-
tion to bargain in good faith with the designated majority representa-
tive of its employees. The Respondent contends that the union no
longer represented a majority of its employees on August 3, 1959, and
thereafter, thereby releasing the Respondent from its bargaining obli-
gations. We find no merit in this contention. In similar cases the
Board has decided that a respondent cannot claim as a defense the
fruits of its own unfair labor practices.' In view of the Respondent's
unlawful organization, support and assistance to, and domination of,
the C.I.M., the Union's majority status under its preexisting contract
was not affected by the defection of the employees to the C.I.M. More-
over, the Respondent's refusal to supply relevant wage data to the
Union during negotiation was in and of itself bad-faith bargaining.4
THE REMEDY
Although the Trial Examiner found that the Respondent's conduct,
vis-a-vis the C.I.M., constituted unlawful domination, lie did not in-
clude a recommendation for the disestablishment of the C.I.M. In
accord with similar cases wherein the Board found that an employer
organized, supported, and determined the nature, structure, and func-
tion of an employee organization in violation of the Act, we shall
order that the Respondent disestablish the C.I.M 5
ORDER
Upon the entire record and pursuant to Section 10(c) of the Na-
tional Labor Relations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent , Mark R. Clegg and Mary
2 See, Wall Tube & Metal Products Co., 122 NLRB 13 ; 0. E. Szekely and Associates,
Inc., 118 NLRB 1125; Ben Corson Manufacturing Co, at al , 112 NLRB 323 ; Standard
Coil Products Co., Inc, 110 NLRB 412 , enfd. in part and modified on other grounds
224 F 2d 465 (C A. 1), cert. denied 350 U S 902
Vapor Blast Manufacturing Company, 126 NLRB 74; Jasper National Mattress Com-
pany, 89 NLRB 75, at 76 and footnote 7.
4 Meyer Fabes, at al, d / b/a Gateway Luggage Mfg Co, 122 NLRB 1584, Westing-
house Air Brake Company (Air Brake Plant ), 119 NLRB 1118.
B Wall Tube & Metal Products Co, supra; 0 . E Szekely and Associates , Inc, supra;
Ben Corson Manufacturing Co., supra; Standard Coil Products Co., Inc, supra, Essex
Wire and Associated Machines , Inc., 107 NLRB 1153.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. Clegg, d/b/a Clegg Machine Works, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with District Lodge No. 71,
International Association of Machinists, AFL-CIO, as the exclusive
representative of all machinists, machine operators, turret lathe opera-
tors, welders, and apprentices employed by Clegg Machine Works;
and refusing to supply said labor organization, upon request, with
wage data and other information in its possession which is material,
relevant, and necessary to effectuate good faith bargains.
(b) Dominating or interfering with the administration of, or con-
tributing financial or other support to, Local No. 1, Clegg's Independ-
ent Machinists, C.I.M.; or any other labor organization of its
employees.
(c) Recognizing Local No. 1 Clegg's Independent Machinists,
C.I.M., or any successor thereto, as the representative of any of its
employees for the purpose of dealing with the Respondent concerning
grievances, labor disputes, wages, hours of work, or other terms or
,conditions of employment.
,(d) Giving effect to the collective-bargaining agreement dated Au-
gust 7, 1959, between the Respondent and Local No. 1, Clegg's Inde-
pendent Machinists, C.I.M., or to any extension, renewal, or modifica-
tion thereof : Provided, however, that nothing in this Decision and
Order shall require the Respondent to vary or abandon any wage, hour,
seniority or other substantive feature of its relations with its employees
which the Respondent has established in the performance of this
agreement, or to prejudice the assertion by employees of any rights
they may have thereunder.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form,
join or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities except
to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act, as amended, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with District Lodge No. 71,
International Association of Machinists, AFL-CIO, as the exclusive
representative of the employees in the appropriate unit herein found;
and, upon request, supply said labor organization with wage data and
CLEGG MACHINE WORKS 1247
other information in its possession which is material, relevant, and
necessary to effectuate good faith bargaining; and, if an understand-
ing is reached, embody such understanding in a signed agreement.
(b) Withdraw and withhold all recognition from Local No. 1,
Clegg's Independent Machinists, C.I.M. as the representative of any of
its employees for the purpose of dealing with it concerning grievances,
labor disputes, wages, hours of work, or other terms and conditions of
employment, and completely disestablish Local No. 1, Clegg's Inde-
pendent Machinists, C.I.M., as such representative.
(c) Post at its establishment in North Kansas City, Missouri, copies
of the notice attached hereto marked "Appendix." 6 Copies of said
notice, to be furnished by the Regional Director for the Seventeenth
Region (Kansas City, Missouri), shall, after being duly signed by
Respondent's representative, be posted for 60 consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Seventeenth Region, in
writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
6 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended we hereby notify our employees that:
WE WILL bargain collectively, upon request, with District Lodge
No. 71, International Association of Machinists, AFL-CIO, as the
exclusive representative of all machinists, machine operators,
turiet lathe operators, welders, apprentices, and helpers employed
at our North Kansas City, Missouri, machine shop ; and, upon
request, will supply said labor organization with all wage data
and other information in our possession which is material, rele-
vant, and necessary in the process of good-faith bargaining; and,
if an understanding is reached we will embody such understand-
ing in a signed agreement.
WE WILL NOT dominate or interfere with the formation or ad-
ministration or contribute financial or other support to Local
No. 1, Clegg's Independent Machinists or any other labor organi-
zation of our employees.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT recognize Local No. 1, Clegg's Independent Ma-
chinists, C.I.M., or any successor thereto, as the representative of
any of our employees for the purpose of dealing with us concern-
ing grievances, labor disputes, wages, hours of work, or other
conditions of employment.
WE WILL NOT give any force or effect to any agreement we may
now have with Local No. 1, Clegg's Independent Machinists,
C.I.M.: provided, however, we shall not vary or abandon any
wage, hour, seniority, or other substantive feature of our relations
with our employees which has been established in the perform-
ance of this agreement, nor shall we prejudice the assertion by
our employees of any rights they may have thereunder.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist District
Lodge No. 71, International Association of Machinists, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage
in concerted activity for the purpose of collective bargaining or
mutual aid or protection, and to refrain from any or all such
activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8(a) (3)
of the National Labor Relations Act, as amended, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
WE HEREBY disestablish Local No. 1, Clegg's Independent Ma-
chinists, C.I.M. as the representative of any of our employees for
the purpose of dealing with us concerning grievances, labor dis-
putes, wages, hours of work, or other conditions of employment,
and we will not recognize it or any successor thereto for any of
the foregoing purposes.
MARK R. CLEGG AND MARY M. CLEGG
D/B/A CLEGG MACHINE WORKS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on August 18, 1959 , by District Lodge No . 71 International
Association of Machinists , AFL-CIO, herein called the Union , against Mark R.
Clegg and Mary M. Clegg, partners doing business as Clegg Machine Works, herein
referred to individually , respectively, as Mr . Clegg and Mrs. Clegg and jointly as
Respondent , the General Counsel for the National Labor Relations Board , herein
CLEGG MACHINE WORKS 1249
called the General Counsel, caused a complaint to issue on October 30, 1959,
alleging that Respondent had engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1), (2), and (5) of the National Labor Re-
lations Act, as amended (61 Stat. 136), herein called the Act.' Also named in
the complaint as a party is Local No. 1, Clegg's Independent Machinists, herein
called C.I.M., which the complaint alleges was formed, organized, and established
by Respondent in violation of Section 8 (2) of the Act.
In its answer Respondent denied the commission of any of the unfair labor
practices charged. No affirmative defense was pleaded. It admitted the commerce
allegations, the status of the Union and C.I.M. as labor organizations, the bargaining
history between Respondent and the Union, the making of a collective-bargaining
agreement between Respondent and C.I.M. on or about August 7, 1959, and the
description of the appropriate bargaining unit at Respondent's shop.
C.I.M. did not file an answer.
Pursuant to notice a hearing was held before the duly designated Trial Examiner-
at Kansas City, Missouri, on February 8, 1960. The General Counsel and Re-
spondent were represented by counsel. No appearance was filed on behalf of CIO.
The parties were afforded full opportunity to be heard, to introduce relevant evi-
dence, to present oral argument, and to file briefs. The parties appearing waived
oral argument at the hearing. Respondent and the General Counsel subsequently
filed briefs.
Upon consideration of the entire record and the briefs of the parties, and upon
observation of the witnesses, I make the following findings and conclusions:
1. FINDINGS OF FACT
A. The business of Respondent
Respondent is a partnership engaged in the business of custom and special order,
machining operations at its machine shop located at North Kansas City, Missouri.
In the conduct of its machine shop business the Respondent annually furnishes
services and/or products valued in excess of $50,000 to certain businesses and enter-
prises located in the State of Missouri, including, among others, Clipper Manu-
facturing Company, Kansas Flour Mills of America, Midland Mills, American;
Bakeries, American Can Company, Armour Fertilizer Works, and Cook Paint &
Varnish Company.
The above-named businesses and enterprises annually ship products and/or-
furnish services outside the State of Missouri of a value in excess of $50,000.
Respondent concedes that it is engaged in interstate commerce within the meaning,
of the Act and I so find.
B. The labor organization involved
Respondent concedes that the Union and C.I.M . are labor organizations within the,
meaning of Section 2 , subsection 5 of the Act and I so find.
C. Background
Respondent hasbeen in business about 19 years.
In 1952 the Union lost a representation election. The following year (1953) the
Union picketed the plant and within a few hours Respondent and the Union entered'
into a collective-bargaining contract. The contractual relationship continued through
July 31, 1959, on' which date a contract entered into on August 1, 1958, which in-
cluded a union-security clause, expired.
In May of 1959, the Union requested Respondent to begin negotiations for a suc-,
cessor contract?
D. Appropriate bargaining unit
The unit appropriate for the purposes of collective bargining, as agreed by all'
the parties, is: "All machinists, machine operators, turret lathe operators, welders,
apprentices and helpers" employed by Respondent at its machine shop located at-
North Kansas City, Missouri.
E. Negotiations with Union
On or about June 15, 1959, the Union met with Respondent. The negotiators;
for the Union at this and subsequent meetings were Thomas W. Fay and one Mr.,
i The National Labor Relations Board is referred to herein as "Board "
9 All dates referred to herein are 1959 unless otherwise stated.
586439--61-vol. 129-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weber, IAM business representatives; for Respondent, Mr. Clegg.3 At this meet-
ing the Union asked that; (1) the rate of pay of Respondent's only first class ma-
.chinist (Ira Jones) be raised to $2.97 per hour, the rate which is claimed would be
prevailing in similar job-shops after August 1, 1959; (2) Respondent inform it
whether Ira Jones was currently receiving in excess of the rate of $2.67 per hour
which was specified in the existing contract; (3) changes in job classifications be
considered; and (4) the other employees in the unit be given either a 20-cent or 30-
cent an hour increase.4 Respondent countered: (1) it would grant a 10-cent an
hour across-the-board increase; and (2) it would not tell the Union whether Ira
Jones was being paid in excess of $2.67 per hour, it was a "trade secret."
The next meeting took place within a few days of July 1. It was brief. Mr. Clegg
stated that "he offered the ten cents and that was all that he would give . take
that or else . he didn't have time to talk." Then he turned and walked away.
About July 10, the Union asked for the assistance of Federal Mediation and Con-
ciliation Service (FMCS).
The third and final meeting between the parties was on July 14. A conciliator
from FMCS was present. Respondent refused to discuss classification changes or
to inform as to the hourly rate being received by Ira Jones. It repeated its offer of
10 cents an hour. Both sides stood firm. The conciliator said he would get the
parties together before the expiration date of the contract (July 31).
On August 3, the conciliator telephoned Mr. Clegg. The latter testified that
during the course of the conversation he told the conciliator that: (1) The Union no
longer represented a majority; (2) Respondent was withdrawing its 10-cent an hour
offer; (3) Respondent would not meet further with the Union; and (4) Mrs. Clegg
had filed a petition with the Board 5
At no time during the negotiations did the Respondent question the Union's
majority status. The evidence supports the finding that all employees in the bar-
gaining unit were members of the Union when it initiated bargaining negotiations in
May 1959; therefore, the Union was "bargaining representative" within the meaning
of Section 9 (a) of the Act.
F. Genesis of C.1 M
The evidence indicates that during July some of the employees within the collective-
bargaining unit became dissatisfied with the way the Union was handling the bar-
gaining negotiations and the Union 's demand that they pay their delinquent dues
before August 1. We are not concerned with the merits of the complaints since
Section 9 ( a) of the Act vests the bargaining agent with a general power and Sec-
tion 9 ( c) (1) (A) provides a procedure for terminating the agency . It is material
only in that it gave rise to talk . among the employees , concerning establishment of
an independent union. Although the thought came into being in this circumstance,
it was , as will be shown , below, germinated, nurtured , and consummated by
Respondent.
The Union 's contract terminated on Friday , July 31. The following Monday,
August 3, the C I.M., with suddenness , was created
At about 9 o'clock on August 3, according to the testimony of Mr Clegg, Ira Jones
told him that the employees wanted to form an independent union and asked his
help in "drawing up a paper or a document to organize an independent union."
Clegg agreed to help. Clegg then asked his wife "to write up an organization paper."
This she did without specifications as to content from the employees . As unilaterally
drafted by Mrs. Clegg the document stated that "the employees . . hereby form
an independent labor organization to be known as Clegg's Independent Machin-
ists . . . [ the employees ] elect Ira E Jones to the office of bargaining representa-
tive 6 . . . the dues shall be $2 per month ." 7 Signature Imes were shown for
all the employees in the unit plus Mark Robert Clegg, son of the owners. The
owner's son, at the direction of his mother, then took the document to Ira Jones.
It was signed by Ira Jones and Mark Clegg , then taken by Mr. Clegg to Mrs. Clegg
3 No employee from the collective-bargaining unit participated in the negotiations with
Respondent
4 The testimony as to the amount is conflicting Respondent claims the Union de-
manded 30 cents across-the-board , the Union claims it asked 30 cents only for the first-
.class machinist and 20 cents for all others It is not necessary to resolve this conflict.
6 Case No 17-RM-159, filed August 3, 1959, alleging that CIM claimed recognition as
bargaining agent.
e Ira Jones, a witness for Respondent, testified that lie neither suggested the name nor
that he be named as bargaining agent.
' A first draft set the dues as 50 cents per month which was later changed to $2 per
month by Ira Jones, allegedly, but questionable, by direction of the employees
CLEGG MACHINE WORKS 1251
whom he instructed to take it to the Board's Regional Office, submit it as evidence of
the need of an election, and file a petition. Notwithstanding that only one of four
employees eligible for inclusion in the unit had signed the document, she filed the
petition (17-RM-159) at approximately 2 p.m.
The eligible employees in the unit, on August 3 and at all times material there-
after, were Ira E. Jones and his son Orvid E. Jones, Harold Fesenmeyer, and
Claude Hamilton. The owners' son, Mark Clegg, is not under the Act, an employee.
P. A. Mueller & Sons, Inc., 105 NLRB 552; Joe Gold, d/b/a City Tire Company,
117 NLRB 753. Mr. Clegg had brought the document to Fesenmeyer, who refused
to sign it and never did. Orvid Jones and Hamilton were absent on August 3.
Hamilton signed the document on August 4, when it was brought to him by Ii a
Jones. Orvid Jones signed on August 10, when it was brought to lum by Mrs. Clegg.
Orvid Jones gave the General Counsel's representatives two sworn statements-
one dated September 23, 1959, the other February 4, 1960, 4 days before the opening
of the hearing-in which he stated Mrs. Clegg brought the document to him for
signature. On the witness stand he testified that his father brought the document to
him for signature. Observing the demeanor of this witness and in the light of
Mrs. Clegg's testimony I find that Mrs. Clegg did in fact ask Orvid Jones to sign
the document.
G. Negotiations with C.I.M.
The C.I.M. came into being on August 3. On August 7, on which date only two
of four eligible employees in the bargaining unit had signed the C.I.M 's document
of organization-obviously not a majority, Ira Jones discussed a contract with
Mr. Clegg. Jones told Clegg he "was satisfied with conditions, holidays, vacations,
so forth, as they were." Also, that he felt that the provision in the former contract
which provided for double time for all hours worked on Saturday in excess of 4
should be changed to provide for only time and a half for all hours worked on
Saturday. Further, that the "men as a group felt like we should have a ten-cent
raise." Jones testified that Clegg agreed to "the ten cents I asked for." On the
same day Clegg and his wife drafted a contract between Respondent and the C.I.M.
It was patterned for the most part on the Union's contract. Inter alia, without de-
mand, it provided for a 15-cent an hour across-the-board increase, retroactive to
August 3, which increase was included in the paychecks distributed August 7.8
Mr. Clegg testified that he assumed the C.I.M., on August 7, had a majority on
the basis of a statement to him by Ira Jones that his son was in favor of an inde-
pendent union. That such a statement had been made or the father's authority to
make such a statement was disavowed by the Joneses.
H. Concluding findings
In view of the facts set forth, above, and on the entire record, the Trial Examiner
finds.
1. Respondent established, dominated, interfered with, and supported the C.I.M.
and has thereby engaged in and is thereby engaging in unfair labor piactices within
the meaning of Section 8 (a) (2) of the Act.
2. There can hardly be a more persuasive indication of an intent to refuse to ac-
cept the statutory obligation to bargain with the established majority representative
[the Union] than: (1) Respondent's conduct aimed at establishing the C.I.M. imme-
diately upon termination of the Union's contract; (2) Respondent's recognition of
the C.I.M. in the absence of proof of majority status and while its own petition con-
cerning the question of representation was pending before the Boaid; (3) Respond-
ent's unilateral action in granting a 5-cent an hour increase over and above that
offered to the Union and asked for by C.I.M. and, further, without demand from
the C I M. making the raise retroactive to August 3, and including it in the pay-
checks distributed on the same day the contract was entered into [August 7]. These
actions by Respondent when compared with its conduct during the negotiations with
the Union support the conclusion that it feigned recognition of the Union to the
expiration date of the Union's contract.9 It was but a sham covering an underlying
8 Claude Hamilton testified that the first he knew about the 15-cent raise was when he
saw it in his check on August 7. When he asked about it Ira Jones told him it was in
accord with the new contract. At that time he had not seen the "new contract" When
he did it had not been signed
'Inasmuch as Ira Jones testified that during the term of the Union's contract he was
paid at the rate specified therein ($267 per hour). Respondent's repeated refusals so to
-inform the Union, during bargaining negotiations, leaves much to be desired in satisfaction
.of the requiieinents of good-faith bargaining.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determination to refuse to accord the established majority representative the exclu-
sive recognition required by the statute.
Respondent's refusal, during the course of negotiations while it was pretending to
recognize the Union as exclusive representative, to supply the Union with wage
data, material, relevant and necessary to the intelligent exercise of the bargaining
process, was a breach of Respondent's statutory obligations.
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
3. Respondent's unlawful violations of Section 8(a)(2) and (5) of the Act also
constitute violations of Section 8(a)(1).
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section I, above, occurring in connection
with the operations of Respondent, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States and tend to lead to labor
disputes obstructing commerce and the free flow of commerce.
m. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It is a legal axiom that a wrongdoer not profit from his malfeasance and a person
injured by unlawful conduct be restored, insofar as possible, to the status qua
existing before the injury. Therefore, having found that Respondent violated Sec-
tions 8(a)(1), (2), and (5) of the Act to the detriment of the Union's status as
the exclusive representative of the employees in the bargaining unit, I shall recom-
mend that:
(a) Upon request, Respondent bargain collectively with the Union; and also sup-
ply the Union with requested wage data and such other information, which Re-
spondent has in its possession, which is material, relevant, and necessary in the
fulfillment of good-faith collective bargaining.
(b) Respondent withdraw and withhold recognition from the C.I.M. as the exclu-
sive representative of any of its employees for purposes of dealing with Respondent
concerning grievances, labor disputes, rates of pay, hours of employment, or other
terms and conditions of employment, unless and until said C.I.M. shall have been
certified by the Board as the exclusive representative of Respondent's employees in
an appropriate unit.
(c) Respondent cease and desist, without detriment to the employees, from giving
effect to any contract or agreement with C.I.M., including the agreement dated
August 7, 1959, or any agreements supplement thereto or modification thereof,
unless and until C.I.M. shall have been certified as prescribed in paragraph (b).
(d) In view of the nature of the unfair labor practices committed, the commission
by Respondent of similar and other unfair labor practices may be anticipated,
Respondent cease and desist from in any manner infringing upon the rights guar-
anteed to its employees in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union and C.I.M. are labor organizations within the meaning of Section
2(5) of the Act.
3. All machinists, machine operators, turret lathe operators, welders, apprentices,
and helpers employed by Respondent constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
4. The Union was, at the time it initiated bargaining negotiations with Respondent
in May 1959, and at all times since has been the exclusive bargaining representative
within the meaning of Section 9(a) of the Act, of all employees in the unit, described
in paragraph 3, for the purposes of collective bargaining.
5. By interfering with the formation and administration of C.I.M and by con-
tributing support to the said C.I.M. Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(2) of the Act.
6. By bargaining with C.I.M. in derogation of the exclusive bargaining representa-
tive; by its failure to supply the Union with requested wage data in its possession;
and by refusing to accord the majority representative the exclusive recognition
VOGUE ART WARE & CHINA COMPANY 1253
required by the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
7. By its interference with the formation and administration of C.I.M. and its
contribution of support to said C.I.M., and by its failure to bargain with the Union
in good faith, thereby interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a)( I) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Vogue Art Ware & China Company and United Brick & Clay
Workers of America , AFL-CIO, Petitioner. Case No. 8-RC-
3963. January 11, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Harold A. Ross, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
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-
member panel [Chairman Leedom and Members Fanning and
Kimball].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section2(6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.'
All production and maintenance employees 2 at the Employer's
Dennison, Ohio, plant, including the truckdriver-maintenance man
and the plant janitor-maintenance man, but excluding office clerical
employees, professional employees, guards, and supervisors as defined
in the Act.
5. The parties disagree as to whether certain strikers and laid-off
employees should be eligible to vote. Petitioner contends that they
should, and the Employer that they should not, be permitted to vote.
3 The unit finding conforms with an agreement of the parties.
2 The parties stipulated that janitress Mabel Weaver, who works an hour or two every
other day in the evening, should not be included in the unit.
129 NLRB No. 148.