Henry Heide, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1954

107 N.L.R.B. 1160 (N.L.R.B. 1954)

1 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT otherwise interfere with the representation of our employees through
a labor organization of their own choosing.
ASSOCIATED MACHINES, INC.,
Employer.
Dated ................ By.................. ................ ...................••.... .....................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be al-
tered, defaced, or covered by any other material.
HENRY HEIDE, INC. and CANDY AND CONFECTIONERY
UNION, LOCAL 50, RETAIL, WHOLESALE AND DEPART-
MENT STORE UNION, CIO and CANDY AND CONFECTION-
ERY WORKERS UNION, LOCAL 452, BAKERY AND CONFEC-
TIONERY WORKERS INTERNATIONAL UNION OF
AMERICA, AFL, Party to the Contract. Cases Nos. 2-CA-2554
and 2 -CA-2907. February 18, 1954
DECISION AND ORDER
On April 8, 1953, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices , and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent and Local 452 filed exceptions to
the Intermediate Report and supporting briefs. On September
22, 1953, the Board at Washington, D. C., heard oral argu-
ment.'
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 Intermediate Report, the exceptions and
briefs, the oral argument, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations except insofar as they are inconsistent
with the findings and conclusions set forth below.
1. The Trial Examiner found that on and after February
19, 1952, the Respondent violated Section 8 (a) (5) and (1) of
the Act by (a) filing a petition during Local 50's certification
year and refusing to bargain with Local 50 while petitions
were pending during that period; (b) adamantly limiting the
duration of any contract to October 9, 1952, and conditioning
bargaining on that basis; and ( c) terminating its recognition
iAt the close of the oral argument, Local 50 requested permission to withdraw a motion
to reopen the hearing before the Trial Examiner, which it had filed with the Board on May
11, 1953. The request is hereby granted.
107 NLRB No 258.
HENRY HEIDE, INC. 1 161
of Local 50 as of that date. There is no substantial conflict
as to the facts on which the Trial Examiner has based this
conclusion. Both the Respondent and Local 452, however,
contend that the Respondent's conduct was not unlawful.
(a) The filing of the employer petition and the refusal to
bargain during the pendency of petitions
The record shows, as set forth in detail in the Intermediate
Report, that on May 17, 1951, Local 50 won a Board-conducted
election among the Respondent's employees, held pursuant to
a petition filed by Local 452. Local 452 filed objections to the
conduct of the election. On October 9, while a strike called by
Local 50 was in progress, the Regional Director dismissed
the objections, and certified Local 50. Thereafter, during
October, the Respondent and Local 50 held several bargaining
meetings, but reached no agreement on a contract, and Local
50's contract demands became one of the strike issues. During
November, the parties met with representatives of the New
York State Mediation Board, but were unable to settle their
differences. Thereafter, they met with an arbitrator. As a
result , a strike-settlement agreement was signed on January
3, 1952. In February the parties resumed negotiations for a
contract, and agreed on some minor provisions.
On or about February 15, Local 452 notified the Respondent
that it claimed to represent a majority of the employees in the
unit and intended to file a petition. The Respondent notified
Local 50 of this claim, and stated that it doubted Local 50's
majority. Representatives of the Respondent and Local 50 then
consulted the Regional Office of the Board as to their rights
and duties, and were advised by a Board agent that the Respond-
ent should continue to bargain with Local 50, as the certification
year had not expired. On February 19, boththe Respondent and
Local 452 filed petitions with the Board. On March 6 the Re-
gional Director dismissed the petitions as prematurely filed in
relation to the certification year, and on April 2 the Board, on
appeal, sustained the Regional Director's rulings. On April 4,
Local 452 filed a decertification petition. On April 17 the Re-
gional Director dismissed this petition also as untimely, and
on May 14, the Board sustained his ruling. During the pendency
of these petitions before the Regional Director and the Board,
the Respondent admittedly refused to bargain with Local 50.
In finding that the Respondent's refusal to bargain during
this time constituted a violation of Section 8 (a) (5) of the Act,
the Trial Examiner relied on the Board's rule that when a
bargaining representative has been elected by a majority of-
the employees in an appropriate unit and certified by the Board,
the employer is obligated to bargain with the union for a rea-
sonable period of time, normally a year. The rule is qualified
by the proviso that the union's majority may be challenged
within the certification year where "unusual circumstances"
1 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are present . The Board has found "unusual circumstances"
where the union representing the employees was dissolved; 2
where the bargaining representative switched its affiliation
from an international union to another so that the identity of
the bargaining agent was doubtful; s and where the number of
employees in the bargaining unit doubled or quadrupled in the
space of a year .' The Respondent does not contend , nor does
the record show, that the instant case falls within any of these
exceptions . The Respondent contends , however, that in this case
there were unusual circumstances which would justify the re-
fusal to bargain until the Board had decided the question con-
cerning representation raised by the petition . We do not agree.
Local 50 had won a Board - directed election and had been
certified by the Board as collective -bargaining representative
for the employees . Despite such certification , and during the
certification year, Local 452, which had been a losing party
during the original election, requested recognition and filed a
petition . Using this request and petition as justification, the
Respondent refused to bargain with Local 50 . Clearly , we cannot
regard the mere filing of a petition by a union during the cer-
tification year of another union as in and of itself constituting
an open sesame for a refusal to bargain . Were we to do this we
would be placing a heavy premium on frivolous petitions filed
by rival unions during the certification years of other unions,
and would be lending the processes of the Board towards up-
setting the industrial stability that Congress expressly in-
tended for us to preserve . The situation presented here is read-
ily distinguishable from the facts of the cases cited by the
Respondent in its brief. In those cases , the Board and courts
were dealing with situations in which an employer was con-
fronted by conflicting claims by rival unions , neither union
having been previously certified by the Board . Under such cir-
cumstances , the Board and the courts have found that an em-
ployer is not only justified but under a legal obligation not to
accord recognition to either of the rival claimants . However,
here , it must be emphasized , the representation question had
already been resolved , and 1 of the 2 rival unions certified as
collective bargaining representative . A proper regard for the
policy of the Act to maintain stability of industrial relations
requires that this distinction be preserved.
Although we have found a violation by the Respondent of
Section 8 ( a) (5) of the Act , %,e do not predicate such finding on
the fact that the Respondent had filed an employer petition
under Section 9 of the Act . The mere filing of an employer
petition during the certification year does not constitute a
ground for finding a violation of the Act . To penalize an em-
ployer for making use of a congressionally authorized remedy,
even if unwisely or untimely chosen, would , in our opinion, be
2 Public Service COs and Electric Company, 59 NLRB 325.
3<:arsoii Pirie Scott, 69 NLRB 935.
4 Westinghouse Electric Conipariy, 38 NLRB 404.
HENRY HEIDE, INC. 1163
improper . We find, instead , that during the certification year an
employer,who believes in good faith that unusual circumstances
have arisen which require a redetermination of representatives,
may raise this issue by filing a petition with the Board. But
until the Board has administratively decided that the circum-
stances warrant a formal investigation , and has issued a notice
of hearing on the petition , the employer ' s duty to meet and con-
fer in good faith with the union continues . If and when a notice
of hearing issues, the employer may with propriety at such
time suspend bargaining pending determination of the question
concerning representation . The same rule would apply where
a rival union files a petition during the certification year. The
employer may with propriety suspend bargaining if and when a
notice of hearing issues but not before.
In finding , as we do, that the Trial Examiner properly relied
on the Board ' s 1-year rule , we note futher that the cases cited
in the Respondent ' s brief, which deal with a loss of majority,
have nc application here . *' There is nothing in this record to in-
dicate that any loss of majority had actually taken place. For
this reason , we do not pass upon that issue in this case. 6
(b) Limiting the duration of the contract to the
certification year
On May 28, 1952 , after the Board had sustained the Regional
Director ' s dismissal of Local 452 ' s decertification petition,
the parties again met . At this time , the Respondent expressed
doubt of Local 50's majority and its belief that the employees
had joined Local 452 , and announced that , under these circum-
stances, it would not execute any agreement for a term beyond
October 9 , 1952, the end of Local 50 ' s certification year. When
Local 50 , which had proposed a 2-year term , refused to accept
this limitation , the Respondent declared that a stalemate had
been reached . On the following day, Local 50 requested another
meeting . The Respondent refused, saying that a deadlock had
been created by Local 50 ' s "manifestly unalterable decision
to insist upon a two -year contract and [the Respondent's]
equally firm decision to reject a contract which goes beyond
October 9 , 1952," and that , while that deadlock lasted, it saw
"no useful purpose that could be served by further meetings."
Local 50 replied that it had made no "unalterable decision to
insist upon a two year contract ," that its proposal was "sub-
ject to discussion , alteration and modification ," and that the
matter was " subject to negotiation and contingent upon agree-
ment on more important matters of collective bargaining." The
5 For example, N L. R B v. Vulcan Forging Company, 188 F. 2d 927 (C A 6). See also
Mid-Continent Petroleum Corporation ' . N. L R B , 204 F 2d 613 (C A. 6) cert. denied
346 U S 856; cf. N L. R B v Ray Brooks, 204 F 2d S99 (C A. 9).
6NIeniber Rodgers would find a violation of Section 8 (a) (5) only for the reasons stated
above; he would not, like his colleagues , base his finding on the other grounds described
below.
1 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent replied that it would resume negotiations only if
Local 50 was willing , among other things, to negotiate a con-
tract ending on October 9, 1952.
The Board has held that an employer may insist on a contract
limited to the certification year if it does so in good faith and
for no unlawful purpose ! In this case , however, the fact that
the Respondent had already unlawfully refused to bargain with
Local 50 because of the pendency of petitions casts a doubt
on its good faith in seeking tolimitthe contract term. Further-
more, it is clear from the Respondent's position at the May 28
meeting and from its subsequent letters to Local 50 , that it was
not merely insisting on a limited contract term, but was in
effect conditioning any further bargaining on Local 50's ac-
ceptance of that provision . This position effectively foreclosed
any possibility of reaching an agreement on any contract. We
therefore agree with the Trial Examiner that by adamantly
limiting the duration of any contract to the certification year
and conditioning bargaining on that basis the Respondent
unlawfully refused to bargain with Local 50.8
(c) Terminating recognition of Local 50 at the end of the
certification year
On October 10, 1952, the Respondent , by letter, notified
Local 50 that it was terminating recognition because the cer-
tification year had expired and it doubted Local 50's majority.
Thereafter, Local 452 demanded recognition and threatened
economic sanctions unless it was granted . The Respondent
notified Local 50 of this demand , stated that it had decided to
recognize whichever union could show to some impartial third
party pledge cards indicating majority support , and invited
Local 50 to participate in the card check. Local 50 refused on
the ground that its certification required the Respondent to
recognize and bargain with it. The Respondent then arranged
for a card check, which was conducted on December 10. Local
50 did not participate . The results showed that Local 452 held
applications of 216 of the 361 employees in the unit . On January
7, 1953, the Respondent entered into a maintenance - of-member-
ship agreement with Local 452.
The Respondents contends that it was justified in terminating
recognition of Local 50 as of the end of the certification year.
7 The Fiuide & Dauch Paper Company , 104 NLRB 847 ; Vulcan Steel Tank Corporation,
106 NLRB 1278.
8Under Section 8 (d) of the Act, the obligation to bargain "does not compel either party
to agree to a proposal or require the making of a concession." However, as the Court of
Appeals for the First Circuit recently said in N . L R. B v, Reed & Prince Manufacturing
Company, 205 F 2d 131, cert. denied 346 U. S. 887:
... while the Board cannot force an employer to make a "concession " on any specific
issue or to adopt any particular position, the employer is obliged to make some reason-
able effort in some direction to compose his differences with the union, if Section 8
(a) (5) is to be read as imposing any substantial obligation at all.
HENRY HEIDE, INC. 1 165
We find no merit in this contention . In Celanese Corporation of
America , 9 the Board held that after a certification is a year
old an employer can, without violating the Act, refuse to bargain
with a union on the ground that it doubts the union ' s majority,
provided that the doubt is in good faith. The Board further said,
however, that one of the essential prerequisites to any finding
that the employer raised the majority is sue in good faith is that
it must not have been raised in a context of illegal antiunion
activities , or other conduct by the employer aimed at causing
disaffection from the union or indicating that in raising the
majority issue the employer was merely seeking to gain time
in which to undermine the union.
In this case , as we have found above , the Respondent , during
the certification year, had violated Section 8 (a) (5), and a
charge alleging that violation was thenpending before the Board.
Under these circumstances , the Respondent could not lawfully
refuse to bargain with Local 50 until the issue had been decided
by the Board . The Respondent ' s termination of recognition of
Local 50 and its subsequent recognition of Local 452 therefore
constituted a violation of Section 8 (a) (5).
We therefore agree with and adopt the Trial Examiner's
findings that the Respondent unlawfully refused to bargain with
Local 50 by the specific acts discussed above . Furthermore,
on the record as a whole we are convinced that the Respondent,
on and after February 19, 1952 , had no intention of honoring
Local 50 ' s certification , but was merely attempting to delay
reaching any agreement during the certification year, in the
belief that at the end of the year it could terminate recognition.
In so finding , we rely on the Respondent ' s entire course of
conduct , including its refusal to bargain while petitions were
pending , its insistence on limiting the term of the contract to
the certification year as a condition of bargaining , its termina-
tion of recognition of Local 50 immediately upon expiration
of the certification year, and finally its recognition of Local
452 on the basis of a card check while a complaint alleging
a refusal to bargain with Local 50 was pending before the Board.
We therefore find that at all times since February 19, 1952,
the Respondent has refused to bargain in good faith with Local
50, in violation of Section 8 (a) (5) of the Act.
2. The Trial Examiner also found that , by granting exclu-
sive recognition to Local 452 and entering into a union-shop
agreement with it, the Respondent violated Section 8 ( a) (2) of
the Act. The record shows that the agreement did not in fact
provide for a union shop, but for maintenance of membership. to
However, at the time of the execution of the contract on January
9 95 NLRB 664.
10 The provision in question is as follows:
SECTION IV - UNION SHOP. All present employees who are members of UNION shall
remain members of UNION as a condition of their employment ; and all new employees
who within thirty (30) days after their employment become members of UNION shall
remain members of UNION as a condition of employment.
337593 0 - 55 - 75
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7, 1953, Local 50, as found above, was still the statutory repre-
sentative 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 Local
452, granting it exclusive recognition, constituted unlawful sup-
port to that organization. The inclusion in the contract of a
provision requiring members of Local 452 to retain their mem-
bership as a condition of employment clearly rendered that
support more potent. Moreover, even if Local 50 had not been
the statutory representative, the Board holds that an employer
confronted with claims to recognition by rival unions violates
Section 8 (a) (2) if he recognizes one of them on the basis of
a card-showing." Accordingly, we agree with the Trial Exam-
iner that the Respondent assisted and supported Local 452, in
violation of Section 8 (a) (2) and (1) of the Act.
3. We also agree with the Trial Examiner that by executing
the agreement of January 7, 1953, with Local 452 the Respondent
violated Section 8 (a) (3) of the Act. As noted above, the contract
provided in part for maintenance of membership in Local 452
as a condition of employment. Such a provision clearly en-
courages membership in the contracting union and discourages
membership in other labor organizations, and is lawful under
Section 8 (a) (3) only if, among other things, the contract is
made with the duly designated representative of the employees.
As Local 452 was not the representative of the Respondent's
employees at the time the agreement was made, the execution
of the contract providing for maintenance of membership in
Local 452 constituted a violation of Section 8 (a) (3).
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, Henry
Heide, Inc., New York, and its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Candy and Confec-
tionery Union, Local 50, Retail,Whole sale and Department Store
Union, CIO, as the exclusive bargaining representative of its
employees in the certified appropriate unit.
(b) Recognizing Candy and Confectionery Workers Union,
Local 452, Bakery and Confectionery Workers International
Union of America, AFL, as the exclusive representative of its
employees for purposes of collective bargaining, unless and
until Local 452 shall have been certified as such by the National
Labor Relations Board.
(c) Giving effect to its agreement of January 7, 1953, with
Local 452, or to any extension, renewal, modification, or sup-
plement thereof, or to any superseding agreement with said
llS unbeam Corporation, 99 NLRB 546.
HENRY HEIDE, INC. 1167
labor organization , unless and until Local 452 shall have been
certified by the National Labor Relations Board as the repre-
sentative of the Respondent ' s employees , provided that the
Respondent in complying herewith shall not be required to vary
the wages , hours of employment, rates of pay , seniority, or
other substantive features of the employment relationship es-
tablished thereby.
(d) Assisting or supporting Local 452 or any other labor or-
ganization.
(e) Encouraging membership in Local 452 or discouraging
membership in Local 50 except as may be permitted by an
agreement valid under the provisions of the Act.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-or-
ganization , to form, join, or assist Local 50 , or any other labor
organization , to bargain collectively through representatives
of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 or the Act, or 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 employment as authorized
in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Local 452 as
the exclusive representative of its employees for the purposes
of collective bargaining unless and until said organization shall
have been certified by the National Labor Relations Board as
the exclusive representative of its employees.
(b) Recognize and bargain collectively with Local 50 as the
exclusive representative of the employees in the appropriate
unit and , if an understanding is reached , embody such under-
standing in a signed agreement.
(c) Post at its plantinNew York , copies of the notice attached
to the Intermediate Report, marked "Appendix A."' Copies of
said notice, to be furnished by the Regional Director for the
Second Region, shall, after being duly signed by the Respond-
ent's representative , be posted by the Respondent immediately
upon receipt thereof and maintained by it for sixty (60) consec-
utive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered , defaced, or covered by any other mate-
rial.
12 Said notice is hereby amended by deleting the words "The recommendations of a Trial
Examiner," and substituting in lieu thereof the words "A Decision and Order." In the event
that this order is enforced by d 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."
1 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Second Region in
writing, within ten (10 ) days from the date cof this Order, what
steps the Respondent has taken to comply herewith.
Member Murdock, concurring:
Although I concur in the final disposition of this case and with
the greater part of the decision as set forth by my colleagues,
I must dissociate myself from certain implications contained in
section 1(a) of the decision concerning employer refusals to
bargain during the pendency of representation petitions. I be-
lieve that the decision , as written , creates unwarranted doubt
and confusion as to the duty of an employer to bargain during
a certification year in situations where the union has allegedly
lost its majority . As the established rule governing such situ-
ations has not, to my knowledge , been overturned by this Board,
I consider the implied revisions or reservations contained here-
in to be both unfortunate and incorrect.
For a number of years it has been the settled rule of this
Agency that , except under unusual circumstances , the duty to
bargain with a certified union continues during the certification
year despite any alleged loss of majority support for the union,
although thereafter the presumption of majority may be re-
butted . This position has been generally accepted and approved
by the courts . l3 The instant decision , however, appears to
qualify this rule in several important respects . The Board has
not attempted in the past to either limit or define the "unusual
circumstances " that remove the duty to bargain during the
period in question , although situations involving schism or de-
functness of the certified union have been held to fall within
that category . The instant decision by its language , however,
appears to limit those "unusual circumstances " to the parti-
cular cited cases of schism , defunctness , and situations where
"the number of employees in the bargaining unit doubled or
quadrupled in the space of a year ." Insofar as this direct ref-
erence to those specific situations may be regarded as limiting
the Board from considering others in the future , I believe that
it is unwise . Moreover , because the Board is reaffirming these
particular situations as "unusual ," I greatly doubt the wisdom
of including the third example cited . The Westinghouse case, 1a
cited by my colleagues as to unit expansion , was decided in
1942 . While the Board atthattimemighthave entertained a new
petition within the certification year when a bargaining unit
doubled in size , it is now practically speaking prohibited from
doing so by the 1947 amendment to the statute which forbids
holding two elections within a year. 15 Accordingly, I question the
13 See e.g. N L. R. B. v. Ray Brooks , 204 F. 2d 899 (C A. 9).
14Westinghouse Electric Company , 38 NLRB 404.
15 Section 9 (c) (3) of the Act provides in part as follows:
No election shall be directed in any bargaining unit or any subdivision within which, in
the preceding twelve-month period, a valid election shall have been held.
HENRY HEIDE, INC. 1169
wisdom of apparently recognizing such unit expansion as a
basis for challenging a union's majority during the certifica-
tion year and as ground for a subsequent refusal to bargain by
the employer . Nor is it necessary to go into such a question
on the facts of this case.
Of perhaps even greater importance , however, is the consid-
erable doubt cast by the majority decision upon the established
rule , as stated above , that mere loss of majority during the
certificate year is irrelevant. Not only does the majority opin-
ion fail to state this rule as the basis of the decision but, to
the contrary, concludes that, as there was no proof that such
a loss of majority had actually occurred in the instant case,
"we do not pass upon that issue . . . ." This failure to restate
the principle of the irrelevancy of such evidence, accompanied
by the express reservation of the question , is to me unneces-
sary and ominous in view of the long history of the rule.
Accordingly, to the extent that the instant decision, by its
absence of approval and express reservation of the issue, is
in derogation of the long-established principle that, except
under unusual circumstances, the duty to bargain with a cer-
tified union continues during the certification year despite any
alleged loss of majority by the union , I do not join therein.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed in Cases Nos. 2-CA-2554 and 2-CA-2907 by a labor organization,
herein called Local 50 (Candy and Confectionery Union, Local 50, Retail, Wholesale and
Department Store Union, CIO), the General Counsel for the National Labor Relations Board
issued complaints on November 24, 1952, and January 14, 1953, against Respondent Henry
Heide, Inc., alleging that the Respondent had engaged in and is engaging in specified conduct
violating Section 8 (a) (1), (2), (3), and (5) and Section 2 (6) and (7) of the Labor Management
Relations Act, 1947, 61 Stat. 136, herein called the Act Copies of the complaints and charges
were served upon the Respondent, and the Respondent in turn filed answers denying the
commission of the unfair labor practices alleged. The complaint in Case No. 2-CA-2907
alleged , inter alia , that the Respondent has rendered and is rendering unlawful assistance
and support to a labor organization, herein called Local 452 (Candy and Confectionery
Workers Union, Local 452, Bakery and Confectionery Workers International Union of
America, AFL), and Local 452 was named a "Party to the Contract" in that case. Local
452 was served with a copy of the complaint in Case No. 2-CA-2907 and it filed an answer
denying that it has received unlawful assistance or support from the Respondent
Pursuant to notice and an order consolidating both cases, a hearing was held in New
York City on February 2-3, 1952, before the undersigned Trial Examiner. The General
Counsel, the Respondent, Local 50, and Local 452 were represented by counsel and all
parties were afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues The parties presented oral argument
before the Trial Examiner at the conclusion of the hearing and they were also given op-
portunity, of which the Respondent and Local 452 availed themselves, to file briefs and
proposed findings of fact and conclusions of law The Respondent has moved to dismiss
the complaints, which motion is disposed of in accordance with the following findings of
fact and conclusions of law
Upon the entire record in the case, and upon the observation of the demeanor of the
single witness called, I make the following:
1 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation engaging in the manufacture, sale, and dis-
tribution of confectionery products in New York City During the year ending June 30, 1952,
the Respondent shipped products valued in excess of $650,000 in interstate commerce,
and during the same period, the Respondent made out-of-State purchases exceeding $ 750,000
in value
I find that the Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
IL THE UNFAIR LABOR PRACTICE
Local 50 was certified by the Board in November 1945 as statutory bargaining repre-
sentative of the Respondent's employees in an appropriate unit This certification was
followed by a series of collective-bargaining agreements between Local 50 and the Re-
spondent, the last such complete agreement being executed in July 1950 and terminating
by its terms on May 15, 1951 In February 1951, Local 50 and the Respondent each suggested
negotiations for a new agreement . However, on April 12, 1951, and before any new agree-
ment was reached, Local 452 (AFL) filed a representation petition with the Board in Case
No. 2-RC-3573, seeking to supplant Local 50 as bargaining representative. An election
was held on May 17, 1951, with Local 50 obtaining 185 votes and Local 452 obtaining 146
votes out of a total eligibility list of 381 employees Local 452 then filed objections to the
conduct of the election, and the effect of such filing was to hold up Local 50's certification
The Respondent properly declined to deal with Local 50 as exclusive representative during
the pendency of the objections On October 9, 1951, the Board's Regional Director for the
Second Region issued a report finding no merit in Local 452's objections and he thereupon
certified Local 50 as the statutory bargaining representative.
In September 1951, 'meanwhile, a grievance arose between the Respondent and Local
50 respecting the layoff or termination of employee Bennie Nocero. A strike by Local 50
resulted, and this strike lasted from September 19, 1951 , until on or about January 4, 1952.
The record does not indicate whether all, or what percentage, of the employees partici-
pated in the strike
In October 1951, after Local 50's certification earlier that month, the Respondent and
Local 50 engaged in collective- bargaining sessions Local 50's proposals included wage
increases and a union-security provision, among other items, and the Respondent sub-
mitted counterproposals The parties were unable to reach an agreement, and during this
period Local 50 also determined to continue the strike--which began with the Nocero mat-
ter--in order to attain its contract demands The New York State Mediation Board entered
the dispute, but the parties still did not settle their differences after several meetings at
the Mediation Board in November 1951
At Local 50's suggestion the parties then enlisted the assistance of Father Philip C.
Carey of the St. Francis Xavier School. Meetings under Father Carey's auspices were held
on December 14, 1951, and January 2, 1952, and, as a result, the Respondent and Local
50 executed a settlement agreement on January 3, 1952 This agreement provided, among
other things, that the parties would commence negotiations for a contract within several
weeks, that, beginning on January 7, 1952, the Respondent would endeavor to reemploy on
a seniority basis all strikers who sought reemployment, but that new employees who have
been hired as replacements for strikers before January 7, 1952, need not be dismissed, i
that the "employment standards" contained in the last preceding contract, which expired
on May 15, 1951, shall apply pending "conclusion of a new labor contract," insofar as such
standards are consistent with the January 3 agreement, that the Respondent would grant
an immediate 5 cents an hour wage increase, that the maintenance-of-membership pro-
vision of the former agreement also be effective, and that the settlement become effec-
tive on January 7, 1952, and "continue in effect until replaced by a labor contract between
the parties or until otherwise lawfully terminated."
The strike was thus settled, and in February 1952 the parties resumed negotiations
for an agreement as the January 3 settlement provided
iThe record does not show how many strikers were eventually replaced.
HENRY HEIDE, INC. 117 1
Meanwhile, on February 15, 1952, according to the Respondent's answer filed in this
matter, Local 452 (AFL) advised the Respondent that it represented a majority of the Re-
spondent's employees, that it (Local 452) would file a representation petition with the Board,
and that the Respondent should not recognize or bargain with any union until the repre-
sentation issue be determined. On February 19, 1952, Local 452 filed such petition with
the Board in Case No. 2-RC-4511, and on the same date, the Respondent also filed its own
representation petition with the Board in Case No 2-RM-374 On March 6, 1952, the Re-
gional Director dismissed both petitions because they were filed "prematurely in relation
to the certification year [under Local 50's certification on October 9, 1951, in Case No.
2-RC-3573]." The Respondent and Local 452 appealed the Regional Director's dismissal
of their respective petitions, and on April 2, 1952, the Board sustained the Regional Direc-
tor's ruling in each instance
The Respondent, meanwhile, had suspended negotiations with Local 50 upon the filing of
the representation petitions on February 19, 1952, and it refused to resume negotiations
pending final resolution of the matter by the Board About this time, the Respondent and
Local 50 visited the Regional Office to obtain advice concerning the impact of Local 452's
claims on the bargaining obligations of the Respondent toward Local 50. They were advised
that the Respondent's obligation was not relieved, and that it would be in violation if it
broke off negotiations 2
On April 4, 1952, 2 days after the Board's order dismissing the aforementioned petitions,
Local 452 filed another representation petition with the Board in Case No. 2-RC -4655, this
time seeking to have Local 50 decertified as the statutory representative for the affected
employees The Regional Director on April 17, 1952, also dismissed this petition as un-
timely, and his ruling was sustained by the Board on May 14, 1952, upon Local 452's appeal.
As in the case of the two earlier petitions, the Respondent refused to negotiate with Local
50 pending the Board's final disposition of the decertification petition
On May 28, 1952, the parties held their first meeting after the Board's final disposition
of the three intervening petitions. The Respondent announced that it doubted Local 50's
majority and was inclined to believe the employees had joined Local 452 and that, under
the circumstances, it would not execute any agreement for a term beyond October 9, 1952.
which was the end of Local 50's certification year. The Respondent declared a stalemate
upon Local 50's refusal to accept this limitation. Local 50 having proposed a 2-year term.
The Respondent suggested that a Board election be held to resolve the representation matter,
but Local 50 relied on its certification and accordingly rejected the proposed election 3
By letter, dated June 2, 1952, the Respondent advised Local 50 that a bargaining stale-
mate would continue as long as Local 50 insists on a contract beyond October 9, 1952, and
that it therefore saw "no useful purpose that could be served by further meetings." In
this same letter, the Respondent mentioned that Local 50 had itself been "manifestly un-
alterable" about a "2-year contract." Local 50 replied, on June 3, 1952, that it had pro-
posed a 2-year contract, but that this was not "unalterable," as the Respondent's letter
stated, rather, Local 50 continued, "the duration of the contract is not pegged at any parti-
cular time. Its certainty and finality is subject to negotiation and contingent upon agreement
on more important matters of collective bargaining." The Respondent in turn replied that
it would resume negotiations only if, among other things, Local 50 "is willing to negotiate
a contract ending October 9, 1952 "
There were no further meetings concerning a new agreement until Augusrl, 1952. The
Respondent again suggested a Board election and held fast to its position that it would
sign no contract for a term beyond October 9, 1952. The next meeting was on August 28,
1952, at which time the Respondent stated its willingness to enter into a contract effective
beyond October 9 provided that Local 50 would agree to an immediate election and that
continuance of such contract would depend on Local 50 winning the election. Local 50's
stated position was, as it had informed the Respondent on previous occasions, that it would
21 do not accept the Regional Office's interpretation, as binding on private individuals.
Nonetheless, the fact that the Respondent was so informed is material in evaluating the
motives of its later conduct.
3The Respondent advised its employees concerning this meeting. Among other things,
it told them that Local 50 had proposed a 2-year contract, which the Respondent advised
the employees it opposed because it realized Local 50's "plan to imprison all of you in a
long contract to prevent a new election," in connection with which the Respondent also
mentioned the rival unionism in the plant.
1 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not accept such limitation and that it would only participate in an election if the Board
should direct that one be held The stalemate which the Respondent had declared on the
matter of the contract term on May 28, 1952, thus continued to forestall negotiations.4
On September 11, 1952, Local 452 filed another petition in Case No 2-RC-5146, and
on September 15, 1952, another union (Teamsters, AFL) filed a petition in Case No. 2-RC-
5158 seeking some of the employees in the unit for which Local 50 was certified and which
Local 452 was claiming. These petitions were dismissed by the Regional Director on
November 28, 1952, because of the issuance of the complaint in the instant proceedings
alleging the Respondent's refusal to bargain with Local 50.
On October 10, 1952, the Respondent advised Local 50 that, because the "certification
year" expired on October 9 and because the Respondent does not believe Local 50 to enjoy
majority support, the Respondent has no right "to further recognize your Union" as stat-
utory representative and that it was also terminating the agreement of January 3, 1952.
On December 1, 1952, the Respondent advised Local 50 that it had received a communi-
cation from Local 452 that same day stating:
The Union [Local 452 ] will not subject its members employed by your company to
further procedural delays, or further dilatory tactics which deny them the right of
representation, and unless immediate recognition is granted, it will invoke economic
sanctions against your company.
The Respondent also declared at the same time that Local 50 had frustrated the Respondent's
efforts to have the rival representation claims of Local 50 and Local 452 resolved through a
Board election and that the Respondent had therefore determined to recognize whichever
union "can show to some impartial third party union pledge cards indicating majority
support."
Local 50 rejected this invitation to participate in the third-party procedures and reit-
erated its position that the certification of Local 50 required the Respondent to recognize
and bargain with Local 50 as the statutory bargaining representative. The Respondent then
enlisted the services of an impartial third party (Robert M. Rose, Esquire) to conduct a
card check, Rose formulated procedural rules for the card check and published the rules
to Local 50 and Local 452, following which Rose conducted the examination of cards on
December 10, 1952. Local 50 did not participate in this card check. Rose certified the
results of his examination as showing that Local 452 held 216 applications of the 361 em-
ployees in the unit On January 7, 1953, the Respondent entered into a collective-bargaining
agreement with Local 452 as exclusive representative of the employees in the unit for which
Local 50 had been certified This agreement contains a union-shop provision requiring
membership in Local 452 as a condition of employment
The Respondent's Conduct as to Checkoff Revocations; Continuing Organizational
Status of Local 50
The contract which expired May 15, 1951, provided for the monthly checkoff of Local 50
dues and initiation fees, and it is recalled that the settlement agreement of January 3, 1952,
provided for maintenance of membership. On or about January 10, 1952, Local 50 inquired
of the Respondent whether the Respondent would continue the checkoff in view of the January
3 agreement. The Respondent replied that it believed new authorization cards should be
signed because of the time lapse since execution of the 1950 agreement, to which Local 50
replied that new cards were unnecessary because the existing cards stated on their face that
they were revocable from month to month. The checkoff authorization cards in question state,
inter alia, that the signer "reserve[s] the right at any time during any month to notify the
Employer in writing to discontinue such deductions, such notice to become effective on the
first of the following month, and the Employer shall not thereafter make such deductions."
On January 31, 1952, the Respondent again informed Local 50 that it believed it "safer ...
to follow a policy of requiring newly executed authorization cards." The Union sent to the
Respondent 186 dues-deduction cards on July 25, 1952, whereupon the Respondent immedi-
ately summoned its employees in groups to its personnel office and submitted to each of them
the following form:
4 The parties were also in disagreement regarding wage and union- security provisions.
HENRY HEIDE, INC. 1173
July 28, 1952
Today Henry Heide, Inc. received by mail from Frank Scida the attached card by which
he claims that you authorized deduction of dues for his union some months ago.
Do you want us to check off union dues for Local #50, C. 1. O. beginning August, 1952?
YES, I want you to honor my authorization
No, I want you to revoke my authorization effective this date
At a meeting between the parties on August 1, 1952, the Respondent again raised the question
of Local 50's majority status, as has already been indicated, and stated that it didn't believe
Local 50 represented a majority in view of checkoff revocations which employees had
signed 6 The Respondent also advised the Union that there was duplication among some of
the 186 cards which the Union had sent the Respondent and that some other of the signers
had left the Respondent's employ. At about this point, the Union showed to the Respondent
signed petitions executed by employees on July 30, 1952, to the effect that the signers de-
sired Local 50 to represent them whether or not they were paying dues to Local 50.6
The record shows that Local 50 has been conducting regular meetings and is not , and has
not been, defunct at any time since its certification in October 1951. (While I did not permit
the parties to go into the question of Local 50's actual representative strength , Local 452
and the Respondent do not contend that Local 50 has had fewer than approximately 65 mem-
bers at any time since the certification.) Nor has a schism existed in Local 50 at any time
since its certification.
Contentions of Parties and Resolution of Issues
The General Counsel alleges that the Respondent violated Section 8 (a) (5) and (1) by re-
fusing to bargain with Local 50 during the pendency of the representation petitions during
the certification year, by filing its own representation petition during the certification year,
by refusing to execute a contract for a term exceeding the certification year , and by declar-
ing a stalemate upon Local 50's unwillingness to accept this limitation on the duration of
a contract term as a bargaining condition . The 8 (a) (2) allegation is based on the Respond-
ent's recognition of Local 452 and its execution of the agreement with Local 452 at a time
when the Respondent was allegedly required to recognize and bargain with Local 50 The 8
(a) (3) allegation is based on the contract provision requiring membership in Local 452 as
a condition of employment at a time when the Respondent was allegedly required to recog-
nize and bargain with Local 50. And the General Counsel alleges that the Respondent addi-
tionally violated Section 8 (a) (1) by expressing to employees during Local 50's certification
year its belief that Local 50 did not represent a majority of the affected employees. The
General Counsel does not allege any unfair labor practices prior to February 15, 1952
The Respondent contends, among other things, that it had a right to file the RM petition,
that it was not required to bargain with Local 50 during the pendency of intervening petitions
even during a certification year, and that it was entitled to limit the term of a contract to
the certification year when it doubts the majority status of the incumbent certified union
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 ." West Fork Cut Glass Company, 90 NLRB 944, 945, enforced 188 F. 2d
474, 475 (C. A. 4).7 The filing of rival petitions does not suspend an employer's obligation
5 The Respondent had never submitted the alleged revocations to Local 50.
6 The General Counsel did not adduce these petitions at the hearing or adduce the testimony
concerning the number of Local 50's checkoff authorizations for the purpose of demonstrating
Local 50's numerical strength.
7Bishop, McCormick & Bishop, 102 NLRB 1101; George C. Knight Company, 102 NLRB
1198; N. L. R. B. v.GeraldmeNoveltyCo., 173 F. 2d 14, 16-17 (C. A. 2). Compare N. L R. B.
v. Globe Automatic Sprinkler Co., 199, F. 2d 64 (C A. 3), which is clearly distinguishable
from the present case and where the court noted the Sixth Circuit's decision in N L. R. B.
v. Vulcan Forging Co., 188 F. 2d 927, 930-931, as out of line with other overwhelming
authority and upon which the Respondent and Local 452 rely: "In sum, it is apparent that
1 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain during the certification year , 8 moreover , the raising by an employer of a ques-
tion ' concerning a certified union's majority status as a condition precedent to bargaining
within the certification year is itself a refusal to bargain; 9 and, even though I do not find a
good-faith challenge by the Respondent in the present case, a good-faith doubt is irrelevant
on the question of its statutory obligation to bargain during the certification year. 1°
While the Respondent attacks the doctrine of an irrebuttable presumption of a union ' s stat-
utory bargaining status during a certification year, the Respondent further claims that the
instant case should fall within the "unusual circumstances" category excepted from this
established principle. These exceptions generally involve a schism in, or defunctness of,
the statutory representative, 11 neither of which applies here. The Respondent asserts, among
other things in this connection , that there had been and has continued to be a " bitter rivalry"
between Local 50 and Local 452 and that employees were consequently demoralized, that
Local 50 won its certification by a "narrow" margin of 185 votes against 146 votes, that
Local 50 failed to obtain its strike objectives, that some strikers were permanently replaced
and not reinstated after the strike; 12 that Local 50 has failed to demonstrate an actual nu-
merical majority after Local 452 made its claim and was nevertheless unwilling to proceed
with a new Board election , that the Regional Office took 5 months to dispose of the objections
to the election (which objections were groundless and were filed by Local 452), that the
Respondent relied on advice of counsel in ascertaining its rights and obligations, 13 and that
each rival union threatened economic pressures should the Respondent deal with the other.
Rather than bring this case within the exceptions to the 1-year certification rule, the cir-
cumstances of interunion rivalry mentioned by the Respondent are testimonials to the very
reason why the rule is necessary to achieve stability in labor relations For, once a bargain-
ing representative is certified, the employer and the union should be free to get on with the
business of. negotiations without concern for the organizational rivalries unually attending
the preelection period. The certification year is the period during which the rule is intended
to afford employers surcease from badgering by a defeated rival union and from other ad-
verse impacts on plant operations arising from rival union activities before an election and
during which the certified union also may concentrate on negotiations without the preoccu-
pying diversion of a possible loss of its organizational strength, so that both employer and
certified union may attempt to achieve a collective-bargaining agreement, the statutory
vehicle of attaining industrial peace To hold otherwise would result in a constant merry-
go-round of elections and campaigning , which would redound to no ones well-being--not the
employer's or the employees' or the public's.
Although the clear effect of the Respondent's and Local 452's conduct from February 15,
1952, was to frustrate the statutory bargaining status and functions of Local 50, I do not
determine on this record whether the Respondent invited Local 452's activities during Local
50's certification year or whether Local 50 used any "persuasion" on the Respondent. It
the overwhelming weight of authority expressed in decisions by the National Labor Relations
Board and by the courts , is (1) that ' in the absence of unusual circumstances ' a 'reasonable
period' must elapse after the certification of the union before the employer can refuse to
bargain with it; and (2) 'reasonable period' has been defined as 'customarily' or 'usually'
for 'about one year' " (at p. 69).
8Belden Brick Co., 83 NLRB 465; Poole Foundry and Machine Co., 95 NLRB 34, 36-37,
enforced 192 F 2d 740 (C. A 4), cert. denied 342 U S 954. Two cases, cited by Local 452 as
reaching a contrary result, hardly do so. The Toolcraft case, 92 NLRB 655, itself
emphasizes the 1-year certification rule. And in National Carbon Company, Inc., 100 NLRB
689, the Board held that an employer may, in good faith, refrain from bargaining with a
certified union during the pendency of a "timely" petition, which the petitions in the present
case were not. Cf. Centro-O-Cast & EngineermgCo., 100 NLRB 1507; Cooperative Industries,
Inc., 85 NLRB 1258. Compare Palmer Manufacturing Company, 103 NLRB 336, where an
election results in no union being certified.
9 West Fork Cut Glass Company, supra.
10 Celanese Corporation of America 95 NLRB 664, 672.
ii The Third Circuit invoked another exception based on unusual equitable consideration
none of which appear in the present case. See, N. L. R B. v. Globe Automatic Sprinkler Co.,
199 F. 2d 64, 70 (C A 3).
12 See footnote 1, supra. In any event, see West Fork cut Glass Company, supra, and Shannon
& Simpson Casket Co., 99 NLRB 430.
i3See Toolcraft Corporation, 92 NLRB 655, 656 (footnote 5).
HENRY HEIDE, INC. 1175
may be pointed out , however, that if the Respondent had any concern regarding pressures by
Local 452 in the face of Local 50's certification , and I do not find that it did , the Act itself,
in Section 8 (b) (4) (c), provides effective statutory machinery for dealing with Local 452.
International Brotherhood of Teamsters, etc. (Union Chevrolet Co). 96 NLRB 957.
I find that the Respondent violated Section 8 ( a) (5) and (1) by filing the RM petition during
the certification year, there being no justifying " unusual circumstances ," and by refusing
to bargain with Local 50 during the pendency of the intervening petitions during that period,
That the Respondent may have met with Local 50 after this unlawful conduct does not, as
Local 452 contends , bar this finding or the bargaining order which I shall recommend.
Taormina Company. 94 NLRB 884, 899.
Whether an employer may in good faith limit negotiations on condition that a contract not
exceed a certification year , I need not decide here. It is observed , however, that the term
of a contract is a bargainable matter for the parties themselves to resolve . The facts here
nevertheless show that the Respondent unlawfully deprived Local 50 of a substantial portion
of the certification year when it refused to negotiate with Local 50 during the pendency of
the aforementioned representation petitions , one of which the Respondent itself filed, and
when it later caused negotiations to break down on the question of Local 50's majority status.
I would presume that the principle of the certification year , if it has any significance, means
a year during which the certified union is permitted , without unlawful hindrance by the em-
ployer, to perform the functions of a statutory representative . I conclude , therefore, that
under the circumstances of this case the Respondent also violated Section 8 (a) (5) and (1)
by adamantly limiting the duration of a contract to October 9, 1952, and conditioning bar-
gaining on that basis and also by terminating its recognition of Local 50 as of that date.
Cf. Poole Foundry and Machine Company, supra, Chicago Typographical Union No. 16, etc.,
86 NLRB 1041, enforced 193 F 2d 782 (C A. 7). cert. denied 344 U. S. 812, International
Typographical Union, 103 NLRB No. 57.
. a certification when lawfully made, must be respected by the employer until changed
conditions are reflected by a later ruling by the Board altering or setting aside the
certification This is true , even though the bargaining agent so designated has lost its
majority representation of the employees by reason of the subsequent defection of some
of those originally voting for it as their representative The existing certification must
nevertheless be honored until lawfully rescinded.... E14]Nor can the employer de-
cide for itself whether the Union has lost its bargaining status, and deciding that it
has, refuse to deal with it further Whether or not the Union has lost that status is for
the Board to determine upon orderly statutory procedure.... Meanwhile it is the duty
of the employer to deal with the duly certified Union. [N. L. R. B. v. Sanson Hosiery
Mills, 195 F. 2d 350, 352 (C. A. 5), cert. denied 344 U. S. 863.]
The statutory obligation to bargain carries with it the negative duty of treating with no
other union as bargaining representative N. L. R. B. v. Jones & Laughlin Steel Corp., 301
U. S. 1, 44, Medo Photo Corp, v N. L. R. B., 321 U. S. 678, 683-684 . Therefore, by granting
exclusive recognition to Local 452 and entering into a union - shop agreement with Local
452 at a time when Local 452 was not, and Local 50 was, the statutory bargaining represen-
tative, the Respondent has assisted and supported Local 452 and interfered with Local 50
in violation of Section 8 (a) (2) and (1) of the Act Cf. N. L. R. B. v Pennsylvania Greyhound
Lines, Inc , 303 U. S. 261, 267, Meyer & Welch, Inc , 91 NLRB 1102, jasper National Mat-
tress Company , 89 NLRB 64. And by executing an agreement requiring membership in Local
452 as a condition of employment at a time that Local 452 was not, and Local 50 was, the
statutory bargaining representative , the Respondent has discriminatorily encouraged mem-
bership in Local 452 and discouraged membership in Local 50 in violation of Section 8 (a)
(3) and (1) of the Act. International Assn. of Machinists v. N. L. R. B., 311 U. S. 72, 75,
N. L. R. B. v. Electric Vacuum Cleaner Company, 315 U. S. 685, 694; N. L. R B. v. Empire
Worsted Mills, Inc., 129 F. 2d 668, 669 (C. A. 2); Corning Glass Works v. N. L. R. B., 118
F. 2d 625, 629 (C. A. 2).
i4Or, at least, until an employer raises , after the certification year and otherwise in good
faith, a question as to the union's majority. Such good faith presupposes that the employer,
unlike the Respondent, has treated in good faith with the union during the certification year.
Cf. National Carbon Company, Inc., 100 NLRB 689; Toolcraft Corporation, 92 NLRB 655, 656.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in connection with
the operations of the Respondent described in section I, above, have a close, intimate, and
substantivl relation to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Having found that the Respondent has engaged in 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 the Respondent has refused to recognize and bargain with Local 50 as
exclusive representative, I shall recommend that the Respondent, upon request, bargain
collectively with Local 50 as such representative and, if an understanding is reached, em-
body such understanding in a signed agreement
Having found that the Respondent unlawfully supported and assisted Local 452 and inter-
fered with and discouraged membership in Local 50, by recognizing Local 452 and by
entering into the agreement of January 7, 1953, with Local 452, it will be recommended that
the Respondent cease giving effect to said agreement, or to any extension, renewal, modifi-
cation, or supplement thereof, or to any superseding agreement with Local 452, and that
the Respondent withdraw and withhold recognition of Local 452, unless and until Local 452
has been certified by the Board as the representative of the Respondent's employees. Nothing
herein, however, shall be construed as requiring the Respondent to vary wages, hours of
employment, rates of pay, seniority, or other substantive matters, which the Respondent
has established under said agreement, or to prejudice the assertion by employees of any
rights they may have thereunder
Upon the basis of the foregoing findings of fact and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. At all times since October 9, 1951, Local 50 has been the statutory bargaining repre-
sentative of the Respondent's employees in an appropriate unit.
2. The Respondent has violated Section 8 (a) (5) and (1) of the Act by failing and refusing
to bargain collectively with Local 50 on and after February 19, 1952
3. The Respondent has violated Section 8 (a) (3) and (1) by discriminatorily encouraging
membership in Local 452 and discouraging membership in Local 50
4. The Respondent has violated Section 8 (a) (2) and (1) of the Act by assisting and sup-
porting Local 452.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board , and in order to effectuate the policies of the Labor Management Relations Act of
1947, we hereby notify our employees that.
WE WILL bargain collectively with Candy and Confectionery Union, Local 50, Retail,
Wholesale and Department Store Union, CIO.
WE WILL NOT assist or contribute support to Candy and Confectionery Workers
Union , Local 452, Bakery and Confectionery Workers International Union of America,
AFL.
WE WILL NOT recognize Local 452, AFL, as the representative of our employees
unless and until such labor organization shall be certified by the National Labor Re-
lations Board.
PARTEE FLOORING MILL 11 77
WE WILL NOT encourage membership in Local 452 or discourage membership in
Local 50. And our employees are not required to be members of Local 452.
WE WILL NOT in any other manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organizations , to join
or assist Local 50, or any other labor organization, to bargain collectively through
representatives of their own choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection , or 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.
All our employees are free to become or remain members of Local 50 or any other labor
organization.
HENRY HEIDE, INC.,
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.
C. W. PARTEE, d/b/a PARTEE FLOORING MILL and LUM-
BER AND SAWMILL WORKERS, LOCAL UNION NO. 2757,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL. Cases Nos. 15-CA-468 and 15-CA-491.
February 18, 1954
DECISION AND ORDER
On August 5, 1953, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting
briefs.
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 Intermediate Report , the exceptions and
briefs, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial
Examiner, but only to the extent consistent herewith:
1. We are unable to agree with the Trial Examiner in his
finding that the Respondent has violated Section 8 (a) (5) of
the Act, for the following reasons:
One of the bases of the Trial Examiner ' s general conclu-
sion on this aspect of the case is that the Respondent had
engaged in dilatory tactics in scheduling bargaining sessions.
107 NLRB No. 249.