Genesee Foundry Co., Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1954

109 N.L.R.B. 1253 (N.L.R.B. 1954)

GENESEE FOUNDRY COMPANY , INCORPORATED 1253
GENESEE FOUNDRY COMPANY , INCORPORATED and UNITED STEELWORK-
ERS OF AMERICA , CIO, LOCAL No. 4952 and INTERNATIONAL MOLDERS
& FOUNDRY WORKERS UNION OF NORTH AMERICA, AFL, AND ITS
LOCAL No. 80 (PARTY TO THE CONTRACT). Case No. 3-CA-736.
September 10, 1954
Decision and Order
On March 8, 1954, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent Genesee Foundry Company, Incorporated, had engaged
in and was engaging in certain unfair labor practices in violation of
Section 8 (a) (1), (2), and (5) of the Act and recommending that the
Respondent cease and desist therefrom and take certain affirmative
action , as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent and the Molders filed exceptions
to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
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 this
case , and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner with the following additions and
modifications z
1. We find, contrary to the Trial Examiner, that the Respondent's
course of conduct between June 25 and September 29, 1953, does not
constitute a violation of Section 8 (a) (1), (2), or (5) of the Act.
The facts, briefly stated , are as follows : On June 25, 1953, the Steel-
workers was certified as the exclusive bargaining representative of
the Respondent's production and maintenance employees (Case No.
3-RC-1170). Within a month negotiations began between the Re-
spondent and the Steelworkers. Proposals and counterproposals were
made. The parties, however, were unable to reconcile their differences.
Apparently, an impasse had been reached in negotiations and the
Steelworkers struck on August 14,1953.
During the course of the strike several letters were sent by the
Respondent to its employees concerning the issues giving rise to the
strike. In one of those letters, the Respondent solicited the return of
the employees to work. Then, on or about September 15, 1953, and
thereafter, Juczyk, a work leader, participated in the solicitation of
1 The Trial Examiner's findings contain certain misstatements of fact, inadvertences,
and omissions , which need not be set forth here because they do not affect the validity of
our ultimate conclusions . Nor, indeed , do those errors affect the validity of the Trial
Examiner ' s conclusions.
2 The Respondent 's request for oral argument is hereby denied, inasmuch as the record,
including the exceptions and briefs, adequately presents the issues and positions of the
parties.
109 NLRB No. 174.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
four employees to join the Molders. During this period, a majority
of the employees signed cards authorizing the Molders to act as their
exclusive bargaining representative. This showing of majority repre-
sentation in the appropriate bargaining unit was then presented to
the Respondent who promptly recognized the Molders. Later, on
October 8, 1953, the Respondent executed a contract with the Molders,
granting it a union-shop provision and a general wage increase, both
of which had been denied to the Steelworkers.
We find, contrary to the Trial Examiner, that during the period
between July 22 and August 14, 1953, the Respondent bargained in
good faith pursuant to its statutory obligation. We do not believer
that the concessions granted to the- Molders on October 8, 1953, which
had previously been denied to the Steelworkers, are by themselves a
sufficient basis for finding bad-faith bargaining in violation of Section
8 (a) (5) during the negotiations with the Steelworkers. In any
event, as we find, infra, that the Respondent has in another respect
violated Section 8 (a) (5), we need pursue this particular phase of
the complaint no further.
Nor can we agree with the Trial Examiner that the letters sent
by the Respondent during this period constituted violations of Sec-
tion 8 (a) (1). We refer particularly to the letters of August 25,
September 4, and September 10, as set forth in the Intermediate Re-
port. We find no threats and no promises of benefit in those letters.
Indeed, we are aware of nothing in the body of such letters or in the
circumstances surrounding their mailing to warrant characterizing
them as unlawful within established Board criteria.'
The Trial Examiner further found that the solicitation by Juczyk,
by itself, constituted "unlawful assistance and support" by the Re-
spondent in violation of Section 8 (a) (2). We do not agree. While
we find, in agreement with the Trial Examiner, that the work leaders,
including Juczyk, are supervisors within the meaning of the Act, we
note that they are at most minor supervisors, the major part of their
time being spent in manual work alongside the employees they super-
vise. Moreover, the record establishes that the work leaders had not
only been active in the affairs of the Molders but also had participated
to some extent in the affairs of the Steelworkers. When these iso-
lated instances of solicitation by a minor supervisor are viewed against
the work leaders' participation in both Unions, we are constrained to
find that as to these incidents the Respondent did not violate Section
8 (a) (2)'
3 See Texas Company, 93 NLRB 1358 , 1360-1; Celanese Corporation of America, 95
NLRB 664
* See e. g., Indtianapolts Newspaper, Inc., 103 NLRB 1750, 1751; Wayside Press , Inc. v.
N L. R. B., 206 F. 2d 862 ( C. A. 9), reversing 103 NLRB 11. Member Murdock, for the
reasons set forth by the Trial Examiner , would find contrary to his colleagues, that the
actions of Juezyk constituted violations of Section 8 (a) (1) and (2).
GENESEE FOUNDRY COMPANY, INCORPORATED 1255
2. As noted above, we have found, contrary to the Trial Examiner,
no violation of Section 8 (a) (5) during the negotiations which com-
menced on July 22, 1953. We find, however, in agreement with the
Trial Examiner, that on or about September 29, 1953, and thereafter,
the Respondent violated Section 8 (a) (5) and (1) of the Act. The
principal matter in contention is the validity of the Board's certifica-
tion-year rule. The Respondent maintains that because the Molders
obtained a card majority, the Respondent was duty bound to bar-
gain with it, notwithstanding the fact that the defection in the Steel-
workers' ranks occurred during the certification year. The Board
has consistently held, with the approval of the great weight of court
decisions,' that a certified union's majority status, in the absence of
unusual circumstances, is conclusively presumed to continue for 1
year following certification.6 In the instant case, the employees'
repudiation of the Steelworkers, the incumbent Union, and their
affiliation with the Molders, do not constitute such unusual circum-
stances within the certification year as to impair the Steelworkers'
representative status. We see no reason for departing from our usual
rule.
The Respondent, by its admitted refusal to bargain with the Steel-
workers on and after September 29, 1953, failed to honor the Board's
certification. Accordingly, we find that the Respondent on and after
September 29, 1953, has refused to bargain with the Steelworkers as
the exclusive bargaining representative of employees of the Respond-
ent in an appropriate unit in violation of Section 8 (a) (5) of the
Act, and has thereby interfered with, restrained, and coerced em-
ployees in the exercise of their statutory rights in violation of Section
8 (a) (1).
3. The Trial Examiner also found that, by granting recognition to
the Molders on September 29, 1953, and thereafter entering into a writ-
ten contract with it, the Respondent violated Section 8 (a) (2) of the
Act. On September 29, however, the Steelworkers, as found above,
was still the certified representative of the Respondent's employees,
and the Respondent was therefore under a duty to deal exclusively
with it. Under these circumstances, the execution of a contract with
the Molders , granting it exclusive recognition, constituted unlawful
5See e g, N. L. R. B. v Ray Brooks, 204 F. 2d 899 (C. A. 9), cert. granted, 347 U. S.
916; L. L. Mature Transport Co. v. N. L. R. B., 198 F. 2d 735 (C. A. 5) ; N. L. R B v. San-
son Hosiery Mills, Inc ., 195 F. 2d p. 350 ( C. A. 5) ; and cases cited at footnote 8 of the
Intermediate Report. The Respondent relies primarily on Mad-Continent Petroleum Corp. v.
N. L. R. B., 204 F. 2d 613 (C A 6), cert. denied 346 U. S. 856. With due respect to this
opinion of the Court of Appeals for the Sixth Circuit, we are disposed to adhere to our
customary certification-year rule , particularly in view of contrary opinions voiced by
other courts of appeals , until the Supreme Court of the United States decides against the
Board on this issue
9 Shirlington Supermarket , Inc, et al ., 108 NLRB 579; Henry Heide, Inc, 107 NLRB
1160 ; National Shirt Shops of Florida , Inc., 105 NLRB 116; Mid-Continent Petroleum
Corporation, 99 NLRB 182 ; L L. Majure Transport Co., 95 NLRB 311.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support to that organization. The inclusion in the contract of a union-
shop provision requiring membership in the Molders rendered that
support more potent. Accordingly, we agree with the Trial Examiner
that the Respondent assisted and supported the Molders in violation
of Section 8 (a) (2) and (1) of the Act.'
4. Because of the above violations of Section 8 (a) (1), (2), and
(5), we find that the economic strike of August 14 was converted to an
unfair labor practice strike no later than September 29, 1953.8 With
this in mind, we turn to an examination of the Respondent's letters of
October 1 and 7, 1953. On October 1 the Respondent informed its
employees that the Molders had been recognized as their exclusive bar-
gaining agent and that bargaining had begun with the Molders. On
October 7 the Respondent requested the employees to return to work
by October 12 and referred to a general wage increase for all employees
which was being instituted pursuant to a contract executed with the
Molders. That letter also, at the very least, threatened the strikers
with loss of their jobs. As the employees were then unfair labor prac-
tice strikers who could not be legally replaced,9 the Respondent's threat
of October 7 was in itself an independent violation of Section 8 (a)
(1) of the Act,10 as was the act of soliciting individual strikers to
return to work in derogation of the Steelworkers' authority as their
bargaining representative. That solicitation was accompanied by the
above coercive threat and was, in our eyes, an integral part of the Re-
spondent's illegal opposition to the Steelworkers as evidenced by the
violations of Section 8 (a) (2) and (5), heretofore described."
Order
Upon the basis of 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 Respondent,
Genesee Foundry 'Company, Incorporated, Syracuse, New York, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Contributing illegal assistance and support to or otherwise in-
terfering with the administration of International Molders & Foundry
Workers Union of North America, AFL, and its Local No. 80, or any
other labor organization.
4 Henry Heide, Inc., 107 NLRB 1160. The Trial Examiner did not find domination of
the Molders by the Respondent . Nor can we, on this record, make such a finding. Accord-
ingly, we do not agree with the Trial Examiner 's remedy of disestablishment of the Molders.
8 National Gas Company, 99 NLRB 273 , 285-6 ; R. J. Oil & Refining Co., Inc., 108 NLRB
641.
8 N. L. R. B. v. MacKay Radio & Telegraph Company , 304 U. S. 333.
io Reed d Prince Manufacturing Co., 96 NLRB 850, 860.
u See cases cited at footnote 3, supra. There is no merit in the Respondent 's contention
that the above letters are protected by either the constitution or by Section 8 (c) of the
Act.
GENESEE FOUNDRY COMPANY, INCORPORATED 1257
(b) Giving any force or effect to the contract dated October 8, 1953,
or to any other agreement, supplement, or renewal thereof, which the
Respondent may claim to have with International Molders & Foundry
Workers Union of North America, AFL, or its Local No. 80, without
prejudice to any wage increases or other benefits to employees now in
effect by reason thereof.
(c) Refusing to bargain collectively with United Steelworkers of
America, CIO, Local No. 4952, as the exclusive bargaining representa-
tive of all the production and maintenance employees employed at the
Respondent's plant at Syracuse, New York, excluding office clerical
and technical employees and all guards, professional employees, work
leaders, and other supervisors as defined in the Act.
(d) In any like or related manner interfering with, restraining, or,
coercing its employees in their exercise of the right to self -organiza-
tion, to form, join, or assist labor organizations, to join or assist
United Steelworkers of America, CIO, Local No. 4952, to bargain col-
lectively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other
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 em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the polices of the Act:
(a) Withdraw and withhold recognition from International
Molders & Foundry Workers Union of North America, AFL, and
its Local No. 80, as bargaining representative of employees in the
aforesaid appropriate unit with respect to rates of pay, wages, hours
of employment, and other conditions of employment.
(b) Upon request bargain collectively with United Steelworkers of
America, CIO, Local No. 4952, as the exclusive bargaining representa-
tive of the employees in the above-described appropriate unit, and
embody in a signed agreement any understanding reached.
(c) Post at its plant in Syracuse, New York, copies of the notice
attached hereto and marked "Appendix A." 12 Copies of said notice,
to be furnished by the Regional Director for the Third Region, shall,
after being signed by Respondent's representative, be posted by Re-
spondent, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees 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.
v 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."
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Third Region (Buffalo,
New York), in writing, within ten (10) days from date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges viola-
tions of the Act other than those referred to above, and to the extent
that its allegations have not been sustained, be, and it hereby is, dis-
missed.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
Appendix A
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, we hereby notify our employees that :
WE WILL NOT contribute illegal assistance and support to or
otherwise interfere with the administration of International
Molders & Foundry Workers Union of North America, AFL, and
its Local No. 80, or any other labor organization.
WE WILL withdraw and withhold recognition from the Inter-
national Molders & Foundry Workers Union of North America,
AFL, and its Local No. 80, as the representative of our employees
in the appropriate unit herein found for the purposes of col-
lective bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment.
WE WILL bargain collectively, upon request, with United Steel-
workers of America, CIO, Local No. 4952, as the exclusive repre-
sentative of all employees in the appropriate unit described herein
with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and if an agreement
is reached, embody it in a signed agreement. The bargaining
unit is :
All production and maintenance employees at the plant of
Genesee Foundry Company, Incorporated, Syracuse, New
York, excluding office clerical and technical employees and
all guards, professional employees, work leaders, and other
supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form, join, or assist labor organizations, to
join or assist United Steelworkers of America, CIO. and its Local
No. 4952, to bargain collectively through representatives of their
GENESEE FOUNDRY COMPANY, INCORPORATED 1259
own choosing, and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection,
and to refrain from any or all of 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 employ-
ment, as authorized in Section 8 (a) (3) of the National Labor
Relations Act, as amended.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization, 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 Act.
GENESEE FOUNDRY COMPANY, INCORPORATED,
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
These proceedings brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act, are based upon a charge filed on October
1, 1953, by United Steelworkers of America, CIO, Local No. 4952, herein called
the Steelworkers Union, against Genesee Foundry Company, Incorporated, herein
called the Respondent . Pursuant to the charge, the General Counsel of the National
Labor Relations Board issued a complaint against the Respondent dated October
19, 1953, which was duly amended on October 26, 1953, alleging that Respondent
had engaged in and is engaging in certain unfair labor practices within the mean-
ing of Section 8 (a) (1), (2), and (5) of the Act. Copies of the charge, the com-
plaint, and notice of hearing were duly served upon the Respondent . Upon motion
duly filed in accordance with the Board's Rules and Regulations ( Section 102.29),
International Molders & Foundry Workers Union of North America, AFL, and its
Local No. 80, herein collectively called the Molders Union, were allowed to inter-
vene as a party to the contract.
With respect to unfair labor practices , the complaint , as amended, alleges in
substance that the Respondent (1) on and after April 1, 1953, interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act by interrogation concerning their union affiliations , and threat-
ening them with discharge or other economic reprisals if they joined or assisted the
Steelworkers Union; (2) interfered with the administration of a labor organization
by assisting and contributing support to the Molders Union, soliciting its employees
to abandon the Steelworkers Union, recognizing said Molders Union as exclusive
bargaining representative of its employees despite certification within a year of the
Steelworkers Union by the National Labor Relations Board, and by entering into
a collective-bargaining agreement with said Molders Union granting concessions
theretofore denied to the Steelworkers Union including wage increases and a union-
shop clause requiring membership in the Molders Union as a condition of employ-
ment ; and (3 ) on and after July 22, 1953, refused to bargain with the Steelworkers
Union as the duly certified and exclusive representative of all employees at its Syra-
cuse plant, exclusive of office clerical and technical employees and all guards, pro-
fessional employees , work leaders , and other supervisors as defined in the Act.
Both Respondent and the Molders Union filed an answer admitting jurisdictional
allegations of the complaint, as amended , but denied all allegations of unfair labor
practices.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was conducted at Syracuse, New York, on Decem-
ber 7, 8, and 9, 1953, before the undersigned Trial Examiner duly designated by
the Chief Trial Examiner. All parties were represented by counsel, participated
in the hearing, and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence pertinent to the issues involved.
At the close of the hearing, all parties were given an opportunity to argue orally
upon the record and to file written briefs and/or proposed findings and conclusions.
Oral argument was waived by counsel for all parties. Motion by the Respondent'
and Intervenor to dismiss the complaint was deferred, and is now denied. Motion
by General Counsel to conform the pleading to the proof with respect to minor
matters such as names, dates, etc., was granted without objection. Subsequent to
the hearing certain minor corrections in the official transcript were ordered by the
Trial Examiner in accord with an agreed stipulation of the parties and a motion of
the Respondent. In due course, written briefs were filed by all parties, and have
been given due consideration.
Upon the entire record in the case and from observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Genesee Foundry Company, Incorporated, is a corporation duly organized and
existing by virtue of the laws of the State of New York with its principal office and
manufacturing plant at 400 N. Midler Avenue in the city of Syracuse, New York,
where it engages in the manufacture, sale, and distribution of rough gray iron cast-
ings and related products. In the course and conduct of its business operations
during a representative 12-month period ending September 30, 1953, it purchased
and caused to be delivered to its Syracuse plant sand, scrap iron, steel, and other
raw materials valued in excess of $235,000 of which approximately 50 percent in
value was transported in interstate commerce from points outside the State of New
York. During the same period it manufactured and sold finished products consist-
ing principally of rough gray iron castings valued in excess of $500,000 of which
more than 50 percent in value was shipped from Syracuse, New York, to multistate
•enterprise^ outside said State engaged in commerce throughout the several States
of the United States of America and foreign countries.
I find, therefore, that Respondent is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America, CIO, Local No . 4952, and International Molders
& Foundry Workers Union of North America, AFL, and its Local No. 80, are labor
organizations within the meaning of Section 2 (5) of the Act, admitting to member-
ship employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The factual situation
Undisputed evidence in this case reveals that during the period from June 1, 1948,
through May 31, 1953, the Respondent annually entered into a written collective-
bargaining agreement with International Molders & Foundry Workers Union of
North America, Local No. 80, affiliated with the American Federation of Labor,
as exclusive bargaining representative of all its employees except clerical, tech-
nical, watchmen, guards, and supervisory employees. In each of the several annual
contracts leadmen or work leaders were recognized as members of the bargaining
unit and the Molders Union. All contracts contained a clause providing for a check-
off of union dues by the Respondent. Pursuant to a union-shop election, the con-
tract effective June 1, 1951, and expiring May 31, 1952, for the first time contained
a union-security provision requiring membership in the Molders Union as a condi-
tion of employment, etc. The contract effective June 1, 1952, and expiring on May
31, 1953, contained similar provisions.
Based upon authorization cards allegedly signed by a majority of Respondent's
employees, the Steelworkers Union on or about March 24, 1953, requested and was
denied recognition as bargaining representative. Thereupon, the Steelworkers on
March 27, 1953, filed a representation petition in Case No. 3-RC-1170. Pur-
suant to a hearing in which the Molders Union intervened, the National Labor Rela-
tions Board on June 1, 1953, issued its decision and direction of election requiring
that an election by secret ballot be conducted to determine whether employees in the
appropriate unit desired to be represented for purposes of collective bargaining by
GENESEE FOUNDRY COMPANY, INCORPORATED 1261
United Steelworkers of America, CIO, Local No. 4952, or by Local No. 80, Inter-
national Molders & Foundry Workers Union of North America, AFL, or by neither.
In its decision the Board found that the appropriate unit consisted of all production
and maintenance employees at the Employer's Syracuse, New York, plant, excluding
office clerical and technical employees, and all guards, professional employees, work
leaders, and other supervisors as defined in the Act. In footnote 3 attached to the
decision , the Board found:
The work leaders are each in charge of 10 to 15 employees and spend all their
time working with their groups. The record shows that on at least one occasion
a work leader imposed upon an employee in his group a week's suspension as a
disciplinary measure. The work leaders are paid 5 cents an hour more than the
employees in their groups. The only other supervision over the 97 employees
in the unit is exercised by the general manager and general foreman. In view
of these circumstances, including the disproportionately small number of ad-
mitted supervisors, we find that the work leaders responsibly direct the work of
their groups, and we will exclude them as supervisors.'
Under supervision of the Regional Director, Third Region, an election by secret
ballot was conducted on June 18, 1953, at Respondent's plant in Syracuse, New York.
Both rival Unions appeared on the ballot, and were represented by observers.
Representatives of all interested parties signed a certification on conduct of elec-
tion certifying that the balloting was fairly conducted, that all eligible voters were
given an opportunity to vote their ballots in secret, and that the ballot box was
protected in the interest of a fair and secret vote.
The official tally of ballots revealed that 84 out of 90 eligible voters cast their
ballots; 50 votes were cast for Steelworkers of America, CIO, Local No. 4952, and
31 votes were cast for Local 80, Molders & Foundry Workers, AFL. Three ballots
in addition were challenged. No objections or exceptions were filed to the conduct
of election. Therefore, upon a clear and uncontested majority the Board on June 25,
1953, issued a certification of representatives certifying that United Steelworkers of
America, CIO, Local No. 4952, has been designated and selected by a majority of
the employees in the appropriate unit as their representative for the purposes of col-
lective bargaining and that, pursuant to Section 9 (a) of the Act, as amended, the
said organization is the exclusive representative of all the employees in such unit
for the purposes of collective bargaining with respect to rates of pay, wages, hours
of employment, and other conditions of employment.
B. The appropriate unit
The Board found in Case No. 3-RC-1170, and I find that all production and
maintenance employees at the Respondent's plant in Syracuse, New York, excluding
office clerical and technical employees and all guards, professional employees, work
leaders, and other supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
C. Negotiations with Steelworkers Union
At the first meeting with Respondent on July 22, 1953, Mitchel F. Mazuca, rep-
resenting the Steelworkers Union, presented written proposals for a contract (G. C.
Exhibit No. 2-12) to John D. Mannigan, vice president and general manager, and
the meeting adjourned with little discussion.
At the second meeting on July 27, 1953, the negotiating parties reviewed and dis-
cussed in detail the proposals submitted by the Steelworkers Union. Despite a previ-
ous ruling of the Board that work leaders be excluded as supervisors from the bar-
gaining unit, the parties failed to agree on that issue. The Steelworkers Union in-
sisted that work leaders be excluded, and not required to perform production or main-
tenance work. Respondent insisted that work leaders be included in the bargaining
unit, and continue to perform production and maintenance work, as in the past.
The Respondent refused to accept union-security provisions making membership in
the Steelworkers Union a condition of employment.
At the third meeting on July 29, 1953, the Respondent submitted written counter-
proposals (G. C. Exhibit No. 2-13), which were discussed in detail, but no agree-
'From a preponderance of the evidence in the present case, I find that work leaders,
John Juszczyk, Anthony Pope, and Joseph Dardano, responsibly direct the work of em-
ployees in their respective groups and are supervisors within the meaning of the Act. See
Doak Aircraft Company , 107 NLRB 924.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment was reached. At this meeting a member of the union negotiating committee,.
James Barletto, stated that the Steelworkers Union would not sign a contract con--
tinning the split shift now in effect at the plant. The chief negotiator, Mazuca, an-
nounced that a strike would be called unless agreement was reached by August 15.
At a fourth meeting on August 3, 1953, Respondent submitted an adjustment of-
wages to conform to the area average in a group of foundries selected for com-
parison, but refused to conduct a joint survey with the Steelworkers Union of all
foundry plants in the area. The chart submitted (G. C. Exhibit No. 2-14) revealed
that under Respondent's counterproposal some employees would receive an increase
in wages, but did not meet the Steelworkers' demand for a general wage increase to
all employees. Certain errors in preparation of the chart were discovered, and
the Respondent proposed to submit a corrected chart at the next meeting.
At a fifth meeting on August 5, 1953, Respondent submitted a revised chart
(G. C. Exhibit No. 2-15) in explanation of its proposal to adjust wages according
to an area average determined by itself. The wage offer of Respondent was rejected
by the Steelworkers. Respondent also proposed that a bonus system for workers in
the shake-out group be adopted, which was rejected by the Steelworkers. Discussion
followed with respect to group insurance benefits, downtime, seniority, grievance
procedure, vacations, holidays, union liability, etc., but no substantial agreements
were reached. The respondent agreed to minor items such as providing a room
and bulletin board for union use, and to increase call-in pay from 2 to 4 hours. In
view of the strike threat, Respondent proposed the services of a Federal conciliator,
and thereafter dispatched a telegram to the Federal Mediation and Conciliation
Service in Washington, D. C.
At a sixth meeting on August 12, 1953, a conciliator was present. In joint assembly
the proposals and counterproposals were reviewed in detail, and the negotiating
parties presented to him their respective positions and contentions. After separate
conferences by the conciliator with representatives of both parties, the meeting
adjourned. It was apparent that a deadlock had been reached with respect to the
appropriate unit , union security, wages, plantwide seniority, vacations, and the split
shift.
At the seventh meeting on August 13, 1953, the conciliator attempted to secure
concessions from each party to break the deadlock. Finding them too far apart to
accomplish anything, he concluded that the parties were not ready to accept concilia-
tion in reaching an agreement. At this point it appeared that a strike was imminent,
and Respondent suggested that the strike be postponed and that bargaining negotia-
tions be continued until September 1 on condition that any agreement reached by
that time be made retroactive to August 15. That suggestion was not agreeable to
the Steelworkers, and the strike became effective when the shift ended on August 14,
1953. Thereupon, the plant was closed down.
Thereafter, a new conciliator appeared on the scene, and arranged for a further
meeting of the negotiating parties on August 31, 1953. At this meeting Bert Danquer
replaced Mitchel F. Mazuca as chief negotiator for the Steelworkers Union. All
proposals were reviewed and discussed in the presence of the new conciliator, but
no substantial progress was made towards reaching an agreement.
The conciliator made arrangements for another meeting on September 3, 1953.
Again the parties discussed the differences in their respective proposals, and-failed
to reach any agreement. The Respondent would not agree to any general wage
increase , union-shop clause, or to abolish the split shift. The Steelworkers Union,
insisted on a contract containing all of those provisions.
The conciliator met with the parties again on September 18, 1953, in a hotel room
at Syracuse, New York, but nothing was accomplished. The parties failed to recon-
cile their differences with respect to a general wage increase, union shop, or abolition
of the split shift. The stalemate continued.
D. Unilateral efforts by Respondent to break the strike
In a series of letters mailed to all its employees, the Respondent endeavored to,
persuade them to abandon the strike. On August 25, 1953, the following letter
was dispatched:
DEAR GENESEE EMPLOYEE: The Genesee Foundry Company believes it is
important at this time of a STRIKE to bring to you the facts about our meetings
with the C. I. O. Committee before the STRIKE.
Following two short meetings on July 22nd and 27th, a third meeting took
place on July 29th, at which time the C. I. O. Committee notified us that unless
we came to an agreement by August 15th a STRIKE would be called. Naturally
such a threat was like putting a gun to our head, and made it impossible to
GENESEE FOUNDRY COMPANY, INCORPORATED 1263
reach a genuine agreement . When one side pulls a gun , that is not collective
bargaining.
It has always been the policy of the Genesee Foundry Company to pay wages
at least equal to wages paid for like work in other foundries in this area. That
Policy Will Continue. However, Genesee Foundry cannot be expected to go
out on a limb by trying to pay wages substantially higher than other foundries
pay. What good would it do to pay wages way beyond what other people pay,
and in a few weeks run ourselves and all our employees right out of jobs?
In our meetings with the C. I. O. Committee, we made every attempt to dis-
cuss, to a final settlement, all parts of a new contract. We offered to raise the
wages of any employee whose wages were below the AREA average. In fact,
our wage level is high compared to a lot of foundries around here. Some of
these other foundries, which recently granted increases, only arrived at the pay
level in many job grades which Genesee Foundry had for our employees as
long as March, 1952, over a year ago.
We also offered to extend the Bonus Plan to the shake-out group, so that they
might earn 25% higher wages or more. Did you know about this? Did the
C. I. O. Committee explain to you the details and earning possibilities of this
Plan? We believe this Bonus Plan would be very fair and practical and, if
accepted, would provide higher pay to the group-the same as bonus plans
have done in other departments.
We also offered a disability and sickness insurance Plan which would allow
$25.00 for each of 26 weeks if an employee was sick or was disabled off the job.
As a final attempt to avoid this STRIKE, we offered to continue the meetings,
with any settlement reached before September 1st being retroactive to August
15th, or in other words, the employees' increased pay would be paid back to
that date.
Further, we proposed to continue meeting with the Union Committee in an
effort to reach a satisfactory agreement while the plant stayed at work.
But all our efforts to avoid a STRIKE were flatly refused. As a result, you
are forced to be out of work against our wishes and undoubtedly against your
own wishes. There is no reason why you shouldn't be working and drawing pay
while meetings with the C. I. O. Committee are taking place.
We hope that the C. I. O. Committee will take these things to heart. We
greatly regret that this STRIKE was called, but we did everything we possibly
could to prevent it. We can't stop somebody from pulling a trigger if he insists
on doing so.
The C. I. O. Committee has not asked us to meet with them since the STRIKE.
We have always been ready, and still are, to bargain collectively. But it takes
two to bargain. We don't like guns and we believe you don't either.
We don't like to see customers taking their patterns away from us. That is
just what they are doing every day. We have no means of knowing whether
these customers will ever come back or not.
Sure, the C. I. O. can hurt us by calling this unnecessary STRIKE after we
have been in business for more than 25 years without any strike. And, just
as sure, we know this STRIKE hurts you. Is it good sense for the C. I. O. to
hurt everybody? And also, doesn't it make sense for you to be on the job while
the parties work out the details of a fair contract?
On September 4, 1953, a letter was sent out, as follows:
DEAR GENESEE EMPLOYEE AND YOUR FAMILY: Once again your Company
wants to tell you of their feelings on this foolish STRIKE.
After sitting around for two weeks after the STRIKE, waiting to hear from
the C. I. O. Committee, we finally were contacted by a Government Conciliator,
who offered his services to see if a meeting could be called. I told the Concilia-
tor that the Company had always been ready to meet and that we had done
everything in the world to prevent this STRIKE and to work out the details of
a contract while the employees were on the job at the same time.
The Government Conciliator was finally successful in arranging for a meet-
ing between the Company and the C. I. O. Committee last Tuesday evening,
presided over by the Conciliator. There was also another meeting held yester-
day (Thursday).
The C. I. O. Committee wanted to hold these meetings after working hours
because the Committee members said they were working elsewhere and did not
wish to lose any time.
Nothing of any consequence was accomplished at either of these meetings.
The C. L O_ Committee did not offer to reduce their extreme demands. The
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, as I previously wrote you, repeated its offer, which we made before
the STRIKE, to raise the wages of any employee whose rate happened to be
below the AREA average; to extend the Bonus Plan to the shake-out group; and
to increase the benefits under the disability and sickness insurance plan.
I again pointed out to the C. I: O. Committee that the Company cannot go
out on a limb and put itself and all its employees out of business by paying
wages way out of line and thus have to jack its prices up so high that we'll lose
every customer we have.
You will also be interested to learn that the C. I. O. Committee said they
would never sign a contract unless it contained a "Union Shop" clause. In other
words, under a "Union Shop" clause, every employee would be forced to join the
C. I. O. Union in order to have a job.
You have now lost 3 weeks' pay, and there is no settlement in sight. No new
meeting has been scheduled.
You should ask yourself why it is that no progress has been made. Why
has it been that employees to date have lost 3 weeks' pay?
Since this STRIKE a large amount of patterns have been taken from us by
customers needing castings. Other foundries are getting your work. Does
this help to make steady work for Genesee employees? Steady work without
STRIKES is what counts.
We realize that a great many irresponsible promises were made to you by other
persons. By what right did they make such impossible promises? You, as a
part of Genesee Foundry, have a right to know the true answers to these ques-
tions. Your pocketbook is directly affected by this unnecessary STRIKE.
We again say we regret this STRIKE. We did everything humanly possible
to prevent it. We hope it won't continue. But it's up to you, the people who
are directly involved to take the necessary steps and action to bring the STRIKE
to an end.
Sincerely yours,
JDMannigan/bf
GENESEE FOUNDRY CO., INC.
(S) J. D. MANNIGAN, General Manager.
P.S. In order not to have your insurance and hospital benefits cut off by this
STRIKE, the Company has advanced the full payment on the premium up to
September 28, 1953.
Letter dated September 10, 1953, reads as follows:
DEAR GENESEE EMPLOYEE AND YOUR FAMILY: We have now had 4 weeks
of this foolish STRIKE.
Since my last letter to you there has been no attempt by the C. I. O. Commit-
tee to have a meeting with the Company.
At our last meeting on September 3rd, the Union said that they would never
sign a contract without a Union Shop Clause in it . (That would mean that every
employee would be forced to join the C. I. O. Union in order to have a job.)
This is an "Unfair Labor Practice," and we have filed charges against the C. I. O.
Union for this with the National Labor Relations Board. In other words, when
this Union tries to point a gun at us and say they won't ever sign a contract
unless we do this or unless we do that, they violate the law.
The National Labor Relations Board will send one of their officials to Syra-
cuse to look into this matter. However, he cannot come until September 21st
and, of course, it will take still more time before he can get the facts together
to make his report to the Board. In the meantime , the C. I. O. Committee's
illegal labor practice and refusal to bargain is prolonging this unnecessary
and harmful STRIKE-And are causing you to lose still more pay that you
might be getting.
There is no sense in being off the job when everybody could be on the job'
while the Company is working out the details of a contract with the Union.
This STRIKE does not make a contract come sooner; this STRIKE only makes.
matters worse, and makes it much harder for the Company to give you what
it has offered.
We have always been willing to meet the C. I. O. Committee at any time.
We are still ready to meet them. We do not believe that you want to be out
of work while waiting for this kind of monkey-business.
Who is responsible for these 4 lost weeks? What is gained by losing wages
while waiting for meetings that are not called?
We again repeat, we offered to meet with the C. I. O. Committee in order
to reach an agreement on a contract while the employees work. This was-
GENESEE FOUNDRY COMPANY, INCORPORATED 1265
turned down flat by the C. I. O. And, now comes their refusal to bargain. We
don't like this unlawful refusal to bargain any better than I believe you do.
That is why we filed the charge against them with the National Labor Rela-
tions Board.
I believe you have also seen similar strikes in our city. What good does it
do anyone? Like other companies, we cannot do things that would run us out
of business and run you out of a job. That would be a fine kettle of fish,
wouldn't it?
We feel that you employees have a right to say and do what you want to.
Have you been heard? Have you had a chance to tell how you feel? How
many membership meetings have been held by the C. I. O. Union since this
STRIKE? Have you had a chance to attend any such meeting? This is a
free country, and we believe you want to keep it that way.
Impossible promises cannot settle this STRIKE. We made promises we could
keep. What good would it be for the Company to promise things it could not
do? What good has 4 weeks' lost wages done by promises the C. I. O. made
to you?
As a Genesee employee, you have a right to know the answers to these ques-
tions. You have a right to be working right now at Genesee Foundry, if you
want to. No union has a right to force unemployment on you. The decision
is up to you.
On October 1, 1953, the following letter was mailed:
DEAR GENESEE EMPLOYEE AND YOUR FAMILY: You probably saw the arti-
cle in this morning's Post-Standard about the strike situation. However, I
believe that you would like to have me tell you personally what has been going
on and to give you the details.
Earlier this week an official of the Molders Union, A. F. of L., contacted
me and said that a lot of the people in the shop had been talking with him
since this strike and that a majority of the employees had signed cards. I
asked him what these cards were, and he told me they were signed cards which
said the employees wanted the Molders Union to bargain for them instead of
the Steelworkers CIO Union. He also said I could look at these cards if I
wanted proof of what he said. So I agreed to meet him and examine the cards.
Later in the day I saw him and he showed me the cards. I checked each
card separately and compared each signature with those in my possession, such
as on employment applications or on the back of pay-check vouchers. After
I got through checking and counting the cards, it was clear that a majority of
the employees had signed the cards, which were all of recent date.
I then went to see the Company's lawyers in order to get legal advice as to
what the law required the Company to do under such circumstances. They
told me that there was a case in the U. S. Court of Appeals, exactly like our
situation , which had been decided only a few weeks ago. In that case a union
had won an election and had started to bargain for a contract but, before an
agreement was reached, a majority of the employees signed up with another
union. The Court said that the company had to bargain with the new union.
I then informed the Molders Union that, under the law, our company would
bargain with them. The first meeting took place last Tuesday evening, and a
second bargaining session is scheduled for to-night.
This wholly unnecessary strike is now seven weeks long-seven weeks when
you might have been drawing pay. Bargaining can go on more successfully
when there is no strike. Strikes only make it harder for a company to pay
good wages and compete with other people in the same line of business. Let
us all hope that we can get back on the job soon. It will seem mighty good to
see you in the shop again.
A final letter to employees on October 7, 1953, requested them to return to work
on October 12, as follows:
DEAR GENESEE EMPLOYEE: You are requested to report for work at our
plant on Monday, October 12, 1953, at your regular time.
The laws of the State of New York and the United States of America guar-
antee your right to work, and nobody may lawfully stop you.
The enclosed form to be filled in by you and mailed back the same day you
receive this, will be considered your choice as marked by you. After you
have marked and signed the form, please put it in the enclosed stamped enve-
lope and mail it. Failure to receive it back from you will be an indication to
us that you no longer desire your job.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We sincerely hope that you will return to your job as we would far prefer
to work with our old employees. If you do not return, we have no other alter-
native than to hire a new employee to take the job you have vacated. We
trust this will not be necessary. With kindest regards, I am
Sincerely yours,
(S) J. D. MANNIGAN, General Manager.
P. S. Under the agreement with the new bargaining agent we are putting into
effect a general increase for everybody of .06250 per hour, plus certain addi-
tional adjustments in some jobs to bring them in line with the area average.
E. Recognition of Molders Union
On September 28, 1953, Respondent received a telegram from the Molders Union
claiming majority representation of employees at the Syracuse plant, and requesting
that Respondent negotiate concerning wages and a contract. From a total list of 91
employees, including work leaders, the Molders Union presented as proof of rep-
resentation 47 authorization cards signed by rank-and-file employees, exclusive of
John Maczonis (deceased) and work leaders, which constituted a slight majority of
all employees in the unit.
With the advice of counsel, Respondent decided that it was legally obligated to
recognize the Molders Union as exclusive bargaining representative of its employees
instead of the Steelworkers Union whose certification by the Board was dated June 25,
1953. By letter of September 29, 1953, the Steelworkers Union was so notified by
the respondent. Thereupon, the Respondent negotiated and signed a collective-bar-
gaining agreement with the Molders Union on October 8, 1953, under the terms of
which membership in the Molders Union was made a condition of employment,
and a general increase in wages was granted to all employees. On October 1, 1953,
the Steelworkers Union filed a charge against Respondent alleging unfair labor prac-
tices in violation of Section 8 (a) (1), (2), (3), and (5) of the Act. The strike
ended and with few exceptions all employees returned to work on October 12, 1953,
pursuant to notice from the Respondent.
F. Illegal assistance to Molders Union
Work leaders of the Respondent customarily received instructions from General
Manager John D. Mannigan and General Shop Foreman Horace (Herkie) Stiles
concerning the work to be performed. They in turn responsibly direct the work
of other employees, many of whom are displaced Polish immigrants unfamiliar with
the English language. John Juszczyk was leadman in the shake-out group; Anthony
Pope in the common labor group; and Joseph Dardano in the grinder group.
Throughout the strike these work leaders were retained on Respondent's payroll and
received full wages whether or not any work was performed. Prior to the strike the
Respondent paid their wages during periods of sickness or other excusable absences.
For years they had been members of the Molders Union and bargaining unit pro-
vided by contracts between that labor organization and the Respondent. Having
been excluded from the bargaining unit found appropriate by the Board, they were
not eligible to vote in the election of June 18, 1953, at which the Steelworkers Union
was chosen as exclusive bargaining agent. Prior to the election, Juszczyk and
Dardano attended at least one meeting of the Steelworkers Union. Dardano signed
a membership card of the Steelworkers, and attempted to vote in the election, but
his ballot was challenged.
Arthur Thomas Risteff, shipping clerk, credibly testified that on Thursday, Sep-
tember 24, 1953, Work Leader John Juszczyk came to his home with a business agent
of the Molders Union, Levi Collette, and solicited him to join that labor organiza-
tion. Collette stated that all he had to do was get a majority to sien cards and
that General Manager Mannigan would carry on from there. Risteff refused to
sign a card?
Walter Bednarek, a shaker, credibly testified that John Juszczyk came to his home
in an automobile in company with John Maczonis (now deceased) and another man.
Maczonis called Bednarek out to the car, where he was solicited to join the Molders
Union. Acting as interpreter, Juszczyk advised him to sign a card and convinced
him that by joining the Molders Union everybody would return to work and get
a raise in pay. Thereupon, Bednarek signed the card and gave it to Juszczyk.
Mrs. Walter Trzeciak, wife of a sand cutter, credibly testified that John Juszczyk,
John Maczonis, and another man came to her home in an automobile. They solicited
her husband to join the Molders Union, and Juszczyk stated in substance that the
2 Juszczyk admitted the visit to Risteff, but claimed that he did not hear all of the con-
versation.
GENESEE FOUNDRY COMPANY, INCORPORATED 1267
Company would never agree with the CIO Union, and that it would be years before
they would come to any agreement. Trzeciak did not sign a card.
Stanislew Sobiegrat, a shaker, credibly testified that John Juszczyk came to his
home with two other men and solicited him to join the Molders Union.3 Acting as
interpreter, Juszczyk translated to him a statement to the effect that they would go
back to work quicker if he signed up-that the CIO would never agree-and there
would be more unemployment. Juszczyk explained that he was not compelled to
sign up-that it was up to him-that he could not compel him or anyone else. There-
upon Sobiegrat signed the card dated September 28, 1953.
Work Leader Joseph Dardano credibly testified that Levi Collette, business agent
of the Molders Union, invited all employees of the Respondent to attend a meeting
on September 16, 1953, at which he and others signed cards authorizing the Molders
Union to act as their bargaining representative?
G. The refusal to bargain
It is admitted by the Respondent that on and after September 29, 1953, it withdrew
recognition from and refused to negotiate further with the Steelworkers Union as
certified exclusive bargaining representative of its employees. Respondent contends
that the Steelworkers Union lost its majority when a majority of its employees signed
authorization cards in favor of a rival Union, and that it was legally obligated to
recognize and bargain with the Molders Union under authority of a decision of the
U. S. Circuit Court of Appeals, Sixth Circuit, in the case of Mid-Continent Petroleum
Corporation, 204 F. 2d 613, cert. denied 346 U. S. 856.
To the contrary, counsel for the General Counsel contends that throughout negotia-
tions on and after July 22, 1953, Respondent refused to bargain in good faith with
the Steelworkers Union as the duly certified and exclusive bargaining representative
of employees in the appropriate unit, and by unfair labor practices furnished illegal
assistance and support to the Molders Union, thereby making unlawful its recognition
of that organization.
CONCLUDING FINDINGS
Under the circumstances of this case , it must be recognized that the strike engaged
in by employees of the Respondent and their certified bargaining representative was
a form of concerted activity protected by the Act. Notwithstanding such strike, both
the Respondent and the certified Steelworkers Union were required by law to bargain
collectively, to meet at reasonable times, and confer in good faith with respect to
wages, hours, and other terms and conditions of employment, or the negotiation of
an agreement , or any question arising thereunder , and to execute a written agreement
incorporating any agreement reached when requested by either party. By a series
of letters to employees, hereinbefore set forth, the Respondent unilaterally attacked
the good faith of the Steelworkers Union in bargaining negotiations in an effort to
persuade employees to abandon the strike. It likened the strike to holdup at the
point of a gun, which made it impossible to reach a genuine agreement . It filed a
charge against the Steelworkers Union on September 8, 1953, and later withdrew
the allegations when the charge appeared inconsistent with its own conduct. In a
letter dated October 1, 1953, Respondent notified its employees that it had recognized
and was bargaining with the Molders Union. In a letter dated October 7, 1953, it
submitted written forms to strikers, requesting them to indicate their willingness or
unwillingness to return to work on a day certain (October 12, 1953), and threatened
to hire new employees to replace them. As an inducement to return to work
Respondent said:
Under the agreement with the new bargaining agent we are putting into effect
a general increase for everybody of .0625¢ per hour, plus certain additional
adjustments in some jobs to bring them in line with the area average.
I find, therefore, that Respondent by the threats and inducements aforesaid, inter-
fered with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.5 ,
8 At the hearing this witness identified Levi Collette as one of the men who came to his
home with Juszczyk
* Exhibit R-3 consists of 47 authorization cards signed by 47 rank-and-file employees
on various dates during the strike period. Exhibit R-4 consists of cards signed by J. Dar-
dano on September 16, John Juszczyk on September 24, and Anthony Pope on October 15,
1953. Exhibit R-5 consists of a card signed by John Maczonis (now deceased) on Septem-
ber 3, 1953.
West Coast Luggage Co , 105 NLRB 414; Concrete Haulers, Inc, 106 NLRB 690.
334811-55-vol. 109-81
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD \
From a preponderance of the evidence, I find that the Molders Union with the
unlawful assistance and support of at least one supervisor of the Respondent (John
Juszczyk) obtained authorization cards signed by a bare majority of employees in
the appropriate unit. By summarily recognizing the Molders Union on September 29,
1953, thereby repudiating within 4 months a bargaining representative certified by the
Board, the Respondent ratified unlawful assistance and support furnished by its super-
visor and interfered with the administration of a labor organization, as alleged in
the complaint. The Respondent rendered additional unlawful assistance and support
to the Molders Union by thereafter on October 8, 1953, entering into a written con-
tract agreeing to a union shop, general wage increases, and other concessions ada-
mantly denied in previous negotiations to the certified Steelworkers Union.6 Indic-
ative of bad faith it included work leaders in the bargaining unit, which had been
excluded by the Board from the appropriate unit.?
I do not agree that Respondent was legally obligated to repudiate a duly certified
bargaining representative within the certification year, and recognize a rival Union
claiming majority status based solely upon authorization cards Such contention
by the Respondent is contrary to the clear intent and meaning of the Act. It is not
supported by a majority of the courts. Prior to 1947 amendments of the Act, the
Board administratively established its 1-year certification rule to promote stability
in labor relations between employers and employees. The rule rests upon the
principle recognized by the Supreme Court that "A bargaining relationship once
rightfully established must be permitted to exist and function for a reasonable period
in which it can be given a fair chance to succeed " (See Franks Brothers Co. v.
N. L. R. B., 321 U. S. 702, 705). From the beginning, the rule was upheld and
approved in most cases by the several courts of appeals.8 The public interest requires
that once employees formally and deliberately by secret ballot register their choice
of representatives they should be held to that choice for a reasonable time. To per-
mit employees to change their minds at will following such a proceeding would
make chaos out of the administration of the Act and prevent protection of the very
rights it was designed to make secure. Freedom to choose a representative does not
imply a right to turn him out of office in the next breath without the exercise of some
degree of sobriety and responsibility.
Congress, when considering amendments to the original Act, understood and
approved the Board's rule. In Section 9 (c) (1) of the amended Act it provided
elections both for the purpose of designating bargaining representatives and depriving
them of their representative status. It then further provided in Section 9 (c) (3)
that "No election shall be directed in any bargaining unit or subdivision within
which, in the preceding 12-month period, a valid election shall have been held."
Such legislation was a partial codification of the Board's 1-year rule, and thus, Con-
gress legislated in effect that once employees have elected a bargaining representative
under supervision of the National Labor Relations Board, they are not entitled to
change the result for at least 1 year by vote in another Board-conducted election.
Senator Taft explained (93 Cong. Rec. 3838) when urging the adoption of Sec-
tion9(c) (3):
The bill also provides that elections shall be held only once a year, so that
there shall not be a constant stirring up of excitement by continual elections.
The men choose a bargaining agent for one year. He remains the bargaining
agent until the end of that year. [Emphasis supplied.]
The Senate Report (S. Rep. No. 105, 80th Cong., 1st Sess. p. 25) stated that:
This amendment prevents the Board from holding elections more often than
once a year in any given bargaining unit unless the results of the first election
are inconclusive by reason of none of the competing unions having received a
majority. At present (before 1947 amendments to the Act), if the union loses,
it may on presentation of additional membership cards secure another election
within a short time, but if it wins its majority cannot be challenged for a year.
[Emphasis supplied.]
Conferees in the House accepted the Senate version. (See House Conf. Rep't. No.
510, 80th Cong., 1st Session p. 49.)
6 Marathon Electric Mfg Corp, 106 NLRB 1171 ; Pryne & Company, 105 NLRB 447.
7 Dixie Corporation, 105 NLRB 390.
8 N. L R B v Century Oxford Mfg. Corp, 140 F. 2d 541 (C. A 2) ; N. L R B v . Botany
Worsted Mills, 133 F. 2d 876 (C. A. 3) ; N. L. R. B. v. Appalachian Electric Power Co., 140
F. 2d 217 (C A 4) . N L R B v. Prudential Insurance Co., 134 F 2d 385 (C. A 6)
N L R. B v Grieder Machine Tool & Die Co, 142 F 2d 163 (C A. 6).
GENESEE FOUNDRY COMPANY, INCORPORATED 1269
Since the 1947 amendments to the Act, the Board has continually adhered to the
rule that in the absence of unusual circumstances , a union's representative status is
held to be exclusive for a reasonable period of time, customarily 1 year, following
certification.9 It should be noted, however, that the rule applies only to a representa-
tive status established by Board certification and not to such status established by a
less formal and reliable means, such as a card check. The Board believes that a
union's majority status established pursuant to a card check or some other informal
means does not as reliably reflect the considered and free choice of representatives as
a majority status established pursuant to secret balloting under the safeguards of the
Board election procedure provided by the Act.io
It is well established that "except under unusual circumstances, the duty to bargain
with a certified union continues for the certification year despite a loss, alleged or
real, of the union's majority, and that the raising by an employer of a question con-
cerning a certified union's majority status as a condition precedent to bargaining
within the certification year is itself a refusal to bargain." 11 Since the 1947 amend-
ments to the Act, a majority of the U. S. circuit courts of appeal have reaffirmed and
enforced the Board's rule.12
However, the issue here is not circumscribed by the so-called 1-year certification
rule. Throughout negotiations with the certified Steelworkers Union, the Respondent
refused to consider a contract which would exclude its work leaders from the bargain-
ing unit, provide for union security, or a general wage increase. By a series of letters
to strikers, it interfered with, restrained, and coerced employees in the exercise of
the rights guaranteed in Section 7 of the Act. By reason of the unlawful assistance,
support, and recognition accorded to the Molders Union, and other unlawful con-
duct of the Respondent, the strike was not later than September 29, 1953, converted
into an unfair labor practice strike. Indicative of bad faith in negotiations with the
certified Steelworkers Union, the Respondent within 10 days after its unlawful recog-
nition of the Molders Union entered into a written contract with that organization
agreeing to a union shop, a general wage increase for all employees, and other con-
cessions theretofore withheld from the certified bargaining representative.
I find, therefore, based upon the foregoing findings of fact and the entire record
in the case, that on and after July 22, 1953, the Respondent refused to bargain in
good faith with United Steelworkers of America, CIO, as the duly certified and
exclusive representative of its employees in the appropriate unit with respect to rates
of pay, wages, hours of employment, and other conditions of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. 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.
Having found that Respondent has interfered with, restrained , and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act, I shall recom-
mend that it cease and desist from such conduct.
Having found that Respondent has unlawfully assisted , supported, recognized, and
entered into a written collective -bargaining agreement with the Molders Union, I
shall recommend that it withdraw recognition from and disestablish said organiza-
0 Lift Trucks, Inc, 75 NLRB 998
10 Henry Weis Mfg Co., Inc., 49 NLRB 511; Frigo Bros Cheese Corp., 50 NLRB 464;
Joe Hearin, Lumber, 66 NLRB 1276; Electro Metallurgical Co., 69 NLRB 772; Products
Manufacturing & Engineering Corporation, 73 NLRB 233; Bell Cabinet Company, 73
NLRB 332; National Waste Material Corp., 93 NLRB 477
11 West Fork Cut Glass Co , 90 NLRB 944, enfd 188 F. 2d 474 (C. A. 4).
12 N L. R. it. v Worcester Woolen Mills Corp, 170 F. 2d 13 (C. A. 1) ; N. L R. B. v.
Geraldine Novelty Co , Inc., 173 F. 2d 14 (C. A 2) ; N. L R. B v. Globe Automatic Sprinkler
Co of Pennsylvania, 199 F. 2d 64 (C. A 3) ; N L R B. v. West Fork Cut Glass Company,
188 F. 2d 474 (C. A 4) ; N. L R. B v. Sanson Hosiery Mills, Inc, 195 F. 2d 350 (C. A. 5) ;
Superior Engraving Co v N L. R B, 183 F 2d 783 (C A. 7) ; N. L. R. B. v. Ray Brooks,
204 F. 2d 899 (C A 9).
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion as the bargaining representative of any and all production and maintenance
employees at its plant in Syracuse , New York; that it cease and desist from giving
effect to the contract entered into on October 8, 1953, with that organization , and all
supplements or renewals thereof, without prejudice to any wage increases or other
benefits to employees now in effect ; and that it cease and desist from rendering assist-
ance and support to, or otherwise interfering with the administration of that or any
other labor organization.
Having found that Respondent on and after July 22, 1953 , refused to bargain col-
lectively in good faith with the Steelworkers Union as certified and exclusive repre-
sentative of its employees in the appropriate unit, I shall recommend that Respondent,
upon request, bargain collectively with United Steelworkers of America, CIO, Local
No. 4952, as such representative, with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment , and, if an agreement is reached , embody
its terms in a signed written agreement.
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. United Steelworkers of America, CIO, Local No. 4952, and International
Molders & Foundry Workers Union of North America, AFL, and its Local No. 80,
are each labor organizations within the meaning of Section 2 ( 5) of the Act.
2. All production and maintenance employees at the Respondent 's Syracuse, New
York, plant, excluding office clerical and technical employees and all guards , profes-
sional employees, work leaders, and other supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. United Steelworkers of America, CIO, Local No. 4952, has been at all times
since June 25, 1953 , and now is , the certified and exclusive representative of all em-
ployees in the aforesaid appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By failing and refusing to bargain collectively in good faith on July 22, 1953,
and at all times thereafter , as found above , with United Steelworkers of America,
CIO, Local No . 4952, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( a) (1) and 8 ( a) (5) of the Act.
5. By rendering assistance and support to International Molders & Foundry
Workers Union of North America, AFL, and its Local No. 80, thereby interfering
with the administration of a labor organization , as found above , the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) and8 (a) (2) of the Act.
6. By interfering with, restraining , and coercing its employees , as found above, in
the exercise of the rights guaranteed to them by Section 7 of the Act , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
7. 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.]
ALLIED ELECTRIC PRODUCTS, INC. and INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL, PETITIONER. Case No. 2-RC-6418.
September 10,195.E
Supplemental Decision, Order, and Second Direction of Election
Pursuant to a Decision and Direction of Election issued herein on
February 12, 1954,1 an election by secret ballot was conducted on March
i Not reported In printed volumes of Board Decisions and Orders.
109 NLRB No. 177.