Jem Mfg., Inc.

National Labor Relations Board - Board Decisions

Jan 6, 1966

156 N.L.R.B. 643 (N.L.R.B. 1966)

JEM MFG., INC. 643
representative of employees in such group, which, under these circum-
stances the Board finds to be a single appropriate unit for purposes
of collective bargaining.
[Text of Direction of Election omitted from publication.]
CHAIRMAN MCCULLOCH and MEMBER JENKINS took no part in the
consideration of the above Decision and Direction of Election.
Jem Mfg., Inc . and Sheet Metal Workers' International Associa-
tion , Local 270, AFL-CIO. Case No. 16-CA.-92306. January 6,
1966
DECISION AND ORDER,
On September 14, 1965, Trial Examiner Sidney D. Goldberg issued
his Decision in the above-entitled proceeding, finding that Respond-
ent 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 attached Trial Examiner's Deci-
sion. Thereafter Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
The National Labor Relations 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 Trial Examiner's Decision, the exceptions, the brief,
and the entire record in the case, and hereby adopts the findings and
recommendations of the Trial Examiner, as modified herein.
Although we agree with the Trial Examiner's findings that
Respondent violated Section 8(a) (5) and (1) of the National Labor
Relations Act, as amended, by refusing to recognize and bargain with
the Union, we do not adopt all of his reasoning in support of such
findings.
As more fully detailed in the Trial Examiner's Decision, on
March 2, 1965, the Union met with Respondent coowners, stated that
it represented a majority of Respondent's employees, and presented
authorization cards to the Respondent to prove its majority. Although
John Wheatley, one of the coowners, said that he did not think the
employees should be represented, Wheatley examined the authoriza-
tion cards and copied down the names. The Union then presented the
Respondent with a written request for recognition and a proposed
agreement recognizing the Union and requested that Respondent sign
156 NLRB No. 62.
317-919-66-vol. 156-42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the agreement . Wheatley answered that he would consult his attorney
and let the Union know what he intended to do. The Union left both
documents with Wheatley.
On March 8 , in response to a further written demand of March 3
by the Union , Wheatley and Respondent 's counsel met with the Union.
Respondent 's counsel stated that Respondent realized that the Union
had obtained authorization cards from a majority of Respondent's
employees and that Respondent would be willing to sit down and
negotiate a contract . In response to a request by Respondent 's counsel
for the Union 's proposals , the Union submitted a copy of the Union's
standard form of agreement and stated it would submit additional
proposals later. Respondent 's counsel answered that he would submit
Respondent 's proposals at a future date and would let the Union know
when he could next meet with it. Although Respondent 's counsel
declined to sign the Union's recognition agreement , he assured the
Union that Respondent would negotiate.
On March 22 the Union informed Respondent by letter that it had
selected two employees to act as a negotiating committee and sug-
gested a meeting at Respondent 's office on March 29.
On March 27 Respondent engaged new counsel and , by letter,
informed both the Union and the Board that it believed that a major-
ity of its employees desired to have an election , and that it had not
believed from the outset that a majority of the employees really
wanted a union . In its answer to the complaint alleging violation of
Section 8 ( a) (5) and ( 1), Respondent asserts that it had a "good faith
doubt" that the union represented the "true wishes" of its employees.
On these facts , the Trial Examiner found that the Respondent
violated Section 8 ( a) (5) and ( 1) of the Act because it had failed to
show that it had a good -faith doubt as to the majority status of the
Union when it refused to recognize and bargain with the Union. In
John P. Serpa, Inc., 155 NLRB 99, however, the Board held that,
in a case of this type , it is the General Counsel who "has the burden
of proving not only that a majority of employees in the appropriate
unit signed cards designating the union as the bargaining representa-
tive 1 but a] so that the employer in bad faith declined to recognize
and bargain with the union."
Ordinarily , the General Counsel sustains this burden of proof by
demonstrating that an employer has engaged in other unfair labor
practices which are designed to dissipate a union's majority status?
However , an employer 's bad faith may also be demonstrated by a
course of conduct which does not constitute an independent unfair
1 The Union's majority on the date it requested recognition is clear, and the Respond-
ent does not question the validity of the cards.
2 See, e.g., Joy Silk Mills, Inc., 85 NLRB 1263, enfd. as modified 185 F. 2d 732
(CA.D.C.), cert. denied 341 U.S. 914.
JEM MFG., INC. 645
labor practice. Thus, in Fred Snow, et al., d/b/a Snow di Sons 3
the employer's objective of seeking delay and its rejection of the
collective-bargaining concept was manifested when it repudiated a
previously agreed-upon card check indicating the union's majority
status by continuing to insist on an election. Similarly, in Kellogg's
Inc. d/b/a Kellogg Mills 4 the Board found that the employer had
manifested bad faith when, after a card check by a third party which
established the union's majority and the actual commencement of bar-
gaining negotiations, the employer withdrew from negotiations and
demanded an election upon the advice of newly hired counsel. The
only relevant difference between Kellogg Mills and this case is that in
the former a third person made the card check which satisfied the
employer that the union represented a majority, whereas in this case
the Employer himself examined the cards to determine the Union's
majority. This difference in the means of checking a union's majority
is of significance : an employer's check certainly is as reliable as that
by a third party.
Although the General Counsel had the ultimate burden of proving
Respondent's bad faith in declining to recognize the Union, we believe
that he met this burden in the first instance by his proof that Respond-
ent had checked the cards submitted, was satisfied that the cards
established the Union's majority, and, in reliance upon such check,
commenced bargaining negotiations. The burden of going forward to
overturn this prima facie case then shifted to Respondent to show evi-
dence why the check was erroneous or why on other grounds Respond-
ent in good faith believed recognition was mistakenly granted the
Union. In such circumstances, a prima facie case of bad faith cannot
be rebutted simply by asserting that authorization cards are unreliable
as proof of employee desires.5
Accordingly, in all the circumstances of this case, we find that the
Respondent's refusal to recognize and bargain with the Union was
made in bad faith and, therefore, we adopt the Trial Examiner's
finding that such refusal violated Section 8 (a) (5) and (1) of the
Act."
The Board adopted the Trial Examiner's Recommended Order.]
3 134 NLRB 709, enfd 308 F. 2d 687 (C A. 9).
4 147 NLRB 342, enfd. 347 F. 2d 219 (C.A 9)
5 Since the Respondent commenced actual bargaining with the Union, we find incon-
sequential the fact that Respondent never signed the recognition agreement
9 The case of John P. Serpe, Inc., 155 NLRB 99, is distinguishable on its facts. In
Serpa, the union merely spread the authorization cards in front of the employer The
General Counsel presented no evidence that the employer examined the cards or made
any statement that it believed the union represented a majority of its employees Fur-
thermore, the employer never commenced bargaining with the union as it did here.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The sole question in this proceeding is whether Respondent, having refused to
bargain with the Union without a good-faith doubt concerning its majority repre-
sentation but not having otherwise unlawfully interfered with or coerced its employ-
ees, should be required to bargain on the basis of the card check herein.
The amended complaint I alleges that Respondent, in violation of Section 8(a) (5)
and (1) of the National Labor Relations Act, as amended (herein called the Act),
withdrew recognition from and has refused to bargain collectively with the Charging
Party (herein called the Union) as the representative of employees in an appropriate
unit, although the Union has been designated as such representative and has requested
bargaining.
Respondent's answer admitted the factual allegations of the complaint and the
appropriateness of the unit except the designation of the Union by the employees,
as to which it pleaded: "Respondent in good faith doubts that the Union at any
time represented the true wishes of a majority of its employees." The answer further
alleges that this proceeding "is in furtherance of an effort to compel bargaining with-
out the benefit and protection of the determination of the free choice of the
employees involved" and is in derogation of the Act, the United States Constitution,
and applicable Board and court precedents.
A hearing on the issues so raised was held at Tulsa, Oklahoma, on June 24, 1965,
before Trial Examiner Sidney D. Goldberg, at which all parties were represented
and afforded an opportunity to adduce evidence, cross-examine witnesses, and argue
upon the facts and the law. Briefs filed by the General Counsel and by counsel for
Respondent have been considered.
For the reasons hereinafter set forth in detail, I find that a majority of Respond-
ent's employees in an appropriate unit did designate the Union as their collective-
bargaining representative, that Respondent did not have a good-faith doubt con-
cerning the representative status of the Union, and that its refusal to bargain is in
violation of Section 8 (a) (5) and (1) of the Act.
Upon consideration of the entire record and the demeanor of the witnesses, I
make the following-
FINDINGS OF FACT
1. THE EMPLOYER INVOLVED
Respondent is an Oklahoma corporation, all of whose stock is owned by John
Wheatley. It is engaged at Tulsa, Oklahoma, in the manufacture of shutters and
louvers, selling more than $50,000 worth of them annually to persons engaged in
interstate commerce. It admits, and I find, that it is an employer engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICE
A. The facts
The facts herein are undisputed. In March 1965 2 Respondent's plant employed
seven men in its shop and, in addition, a draftsman, a machinist, and a foreman.
On March 1 the seven shopmen signed cards authorizing the Sheet Metal Workers'
International Association, or any affiliated local union thereof, to represent them for
purposes of collective bargaining and these cards were delivered, late that day, to
officials of Local 270, the Sheet Metal Workers' local union in Tulsa.
The following morning James E. Mason, a business representative of the Union,
accompanied by Woody Pendergraff, the regional director of the AFL-CIO, visited
Respondent and spoke with John Wheatley and his then coowner, George Parker.
Mason introduced himself and Pendergraff to Wheatley and Parker, and said
that they represented a majority of Respondent's employees and had proof of that
fact. According to Mason's uncontradicted testimony:
Mr Wheatley said that he did not think that his employees should be repre-
sented: that he was paying them better than union scale at the present time.
1 Issued May 13, 1965, on a charge filed April 1, 1965.
2 All dates herein are 1965.
JEM MFG., INC. 647
Mason said that he had signed cards to prove the designation of the Union and
seven cards were exhibited to Wheatley who examined them carefully and copied
the names. Pendergraff then told Wheatley he had a written request for recognition
and an agreement recognizing the Union and asked Wheatley whether he would
recognize the Union and sign the agreement. Wheatley answered that he would
consult his attorney and let them know what he intended to do. The union repre-
sentatives left both documents 3 with Wheatley and departed.
On March 3 Mason, not having heard from Wheatley, wrote Respondent another
letter, summarizing what had occurred the previous day and, although noting that
Wheatley had twice examined the cards, offering to submit the cards to a neutral
person for further checking. In response to this letter Wheatley called Mason and
they met, with Hartley Lambdin, Respondent's regular counsel, on March 8.4
Mason introduced himself and the other union officials to Lambdin, saying that they
were there to represent the Union and that they had the authorization cards with
them. Again according to Mason's uncontradicted testimony:
Mr. Lambdin stated that he recognized the fact that we had a majority of the
members who had signed authorization cards, he said that approximately one
hundred percent-or ninety percent of them-that they recognized the fact
that we did represent the union and that they would be willing to sit down and
negotiate a contract-not like one with AT & T but one that would be for the
size and convenience of Iem Manufacturing Company.
Respondent's counsel asked for the Union's proposal: he was given a copy of the
Union's standard form of agreement and he said he would submit Respondent's
proposals at a future date. On Lambdin's further inquiry, Mason said the Union
had additional proposals and that he would forward them. Mason then asked the
hiring dates of Respondent's employees and a schedule of the wage rates and other
benefits but Respondent's counsel pointed out that this information was on the
authorization cards in the Union's possession.
Lambdin stated that he would negotiate for Respondent but that, if he were not
available, Wheatley would do so and he said that he would let the Union's repre-
sentatives know when he could next meet with them. He declined to sign the
Union's recognition agreement but assured them that Respondent would negotiate.5
On March 22 the Union again write Respondent, informing it that the employees
had selected two of their number to act as a negotiating committee and requesting
that, until formal agreement could be reached, the Union be consulted prior to any
changes in wages, hours, or working conditions. The Union again requested the
data it needed to negotiate a contract and suggested a meeting on March 29 at
Respondent's office.
$ Both the demand letter and the proposed recognition agreement describe the employees
for whom the Union was acting as the "production, draftsmen and maintenance em-
ployees," whereas the unit set forth in the complaint is "production and maintenance em-
ployees." The exclusions also differ slightly, the Union's demand excluding "professional,
office clerical and supervisors, as defined in the Act," while the complaint excludes "office
clerical employees, guards and all supervisors as defined in the Act." Respondent's
answer, however, admits that the unit described in the complaint is appropriate for
collective-bargaining purposes and it also admits (denying only the dates set forth in the
complaint) that the Union requested recognition as the exclusive collective-bargaining
of the employees in that unit.
Respondent did not raise any question concerning the propriety of this grouping of
employees in its prehearing communications with the Union and has not contested either
the appropriateness of the unit or the variance between the demand and the unit specified
in this proceeding. I find that the unit set forth in the complaint is an appropriate one,
that the variance between it and the unit set forth in the demand is insubstantial and
should be disregarded. (See The Lone Star Company, 149 NLRB 688 and cases cited on
pages 18-19 of the Trial Examiner's Decision ; see also Gotham Shoe Mfg. Co , 149 NLRB
862, and Piggly Wiggly El Dorado Co., 154 NLRB 445.
The Union's petition for an election (Case No 16-RC-3893) was filed in the Regional
Office of the Board at Fort Worth, Texas, on March 8, a Monday, presumably by mail,
since Mason testified that he "filed" the petition on March 3. It was withdrawn, also
presumably by mail, on March 9
5 This account is not disputed and is confirmed by the Union's letter of March 8, pro-
duced from Respondent's files
648 DECISIONS Or' NATIONAL LABOR RELATIONS BOARD
Shortly after receiving this letter , Respondent 's president , John Wheatley, made
efforts to consult another attorney and, on March 27, he met with Charles A. Kothe,
who appears as counsel for Respondent herein 6 As a result of this meeting , Wheat-
ley wrote two letters: one to the Union and one to the Regional Office of the Board,
and Kothe wrote one : to the Regional Office of the Board,7 setting forth the new
position , described below, which Respondent then assumed.
B. Respondent's contentions
Wheatley's letter of March 27 to the Union states that he had theretofore been
unaware of the "technicalities" in the "several communications" from the Union,
and that-
I do not wish that my innocence of these matters be used to the disadvantage
of our employees and that they be deprived of the right to express their wishes
through a secret ballot.
Asa small employer, I was not aware of the complications that are involved
in this field nor do I believe our employees could possibly be fully aware of
all the complications at the time they may have signed cards for your Union.
I honestly believe that a majority of our employees desire to have an election
and to express themselves through a secret ballot.
The letter also states that he had "requested the Labor Board to consider this case
on the basis of proceeding to an election...."
Kothe's letter to the Assistant Regional Director states that he is "convinced"
that Wheatley-
... honestly did not believe from the outset that a majority of his people really
wanted a union, but was laboring under the false impression to some extent
imparted by the union itself, that he had no real choice in the matter.
Wheatley's letter to the Assistant Regional Director, obviously prepared by Kothe,
states:
. It is my sincere belief that our employees prefer to express their views on
this subject by secret ballot and although it is a very small unit, I don't think
it is fair to deprive them of the chance purely because of what I may have done
without knowledge of the legal implications.
After noting that he was enclosing a petition for an election,8 Wheatley's letter con-
tinues by saying:
.. I am seeking to accomplish what I believe to be the inherent rights of
employees and that is the use of a secret ballot to express their free choice... .
The final paragraph of this letter includes the following:
I did look at some cards that were submitted to me by a representative of the
Union. I didn't examine them with any awareness that this had any legal
implication....
In its answer herein, as stated above, Respondent alleged that it had a "good faith
doubt" that the Union represented the "true wishes" of its employees and that this
proceeding would "compel bargaining" without an election.
C The evidence
Six of the seven employees involved testified that they had signed cards 9 and
described them as "union authorization cards " The second employee to testify
was asked, on cross-examination, what was his "understanding as to the implication,
the meaning, of signing this card" and the General Counsel's objection was sus-
tained on the ground that the card "speaks for itself." 10 No other inquiries were
made by Respondent of any other witness concerning the signing of the cards.
I In the brief filed herein, Kothe refers to himself, or his firm, as "counsel specializing
in labor law."
7 The two letters to the Regional Office were received in evidence herein on Respondent's
motion after the close of the hearing.
8The Board's records show the filing of a petition on March 29 (Case No. 16-RM-291)
which is still pending in the Regional Office.
9 The card of the seventh employee was received in evidence without objection, on the
testimony of the employee who saw him sign it
30 See Bauer Welding & Metal Fabricators, Inc., 154 NLRB 954
JEM MFG., INC. 649
Neither in Wheatley's testimony nor in any other proof offered by Respondent
was any effort made to adduce evidence of facts to support the conclusion of "good
faith doubt" pleaded by the answer. Wheatley was asked by Respondent's counsel
to state his "position in regard to the question of whether this union represents the
men in your plant" but, when the General Counsel's objection that the question
called for a legal conclusion was sustained and the suggestion made that reliance be
placed upon facts, Respondent's counsel did not follow this suggestion. After Wheat-
ley had listed the employees and their functions, Respondent's counsel asked him
whether he knew the men and Wheatley answered: "I feel I know them quite
intimately." Further questioning of Wheatley on direct examination led to the
following colloquy:
Mr. HANNA: I object to the man's attitude, that is a subjective state of mind.
Mr. LANGENKAMP: Your Honor, this question was objected to in another
form earlier. My sole intention here is to cast some light on the very point
that you raised earlier in this hearing which is troubling the Trial Examiner.
That is, withdrawal of recognition and change of heart and so forth. This is
the sole purpose of this question.
TRIAL EXAMINER: Are you trying to prove he never-that he had no change
of heart; that he never intended to recognize the union and that he never did?
Mr. LANGENKAMP: That is the point, your Honor.
TRIAL EXAMINER: I think I can accept that. I am curious, I thought there
was something else behind it. You need not pursue that point, I will take the
legal position shown by the pleadings as your position.
Mr. LANGENKAMP: All right. That is all.
In his summation , Respondent 's counsel stated:
. our position here is that, although cards were presented and signed, which
is undeniable, our position here is that the denial of recognition was a good faith
denial made under the belief and the understanding that these men, if given an
election, would cast a vote or a majority of them would cast a vote against
representation by this union here.
When cautioned that, on the subject of good-faith doubt, Respondent had "pro-
duced nothing," its counsel stated:
. the president of the Jem corporation, Mr. Wheatley, has testified as to the
size of this corporation. He has testified to the fact that there are seven men,
who have worked as they themselves have testified in some cases from four
months to a year for this gentleman.
He has testified that he knew these men intimately as is normal with a man
whose profession is to make products and who has skilled men making products
for him.
He knows these men intimately.
Beyond the fact that he knows these men, knows the way they think, and
beyond the fact that he has dealt with them everyday, we have little else to
rest this case on in regard to the good faith.
This man knows these men; he sees these cards; he does not reconcile the
two. He wants further proof.
This is not the case of a man who has never personally seen these men. It
is an intimate knowledge. It is a close contact.
We are not attempting to prove anything other than the fact that this gentle-
man has a good faith doubt as to the representation. [Emphasis supplied.]
D. Discussion and conclusionary findings
1. The right to an election
The law is settled that the obligation imposed upon an employer, by Section
8(a)(5) of the Act, "to bargain collectively with the representatives of his employ-
ees" is not, and may not be, conditioned upon the designation of such representatives
through an election.
In United Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 74-75,
the Supreme Court wrote:
Section 7 recognizes the right of the instant employees "to bargain collectively
through representatives of their own choosing" and leaves open the manner of
choosing such representatives when certification does not apply. The employees
have exercised that right through the action of substantially more than a majority
of them authorizing the instant union to represent them.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 9(a) provides that representatives "designated or selected for the
purposes of collective bargaining by the majority of the employees in a unit
appropriate for such purposes , shall be the exclusive representatives of all the
employees in such unit for the purposes of collective bargaining in respect to
rates of pay , wages, hours of employment , or other conditions of employ-
ment:..." That fits this situation precisely . It does not require the designated
labor organization to disclose the salaries of its officers, or even to file non-
Communist affidavits.
Under those sections and by virtue of the conceded majority designation of
the union , the employer is [required] to recognize the designated union.
The courts of appeals for several circuits have stated , in enforcing Board deci-
sions, that an employer does not have a "vested right" to an election.,' Accord-
ingly-as Respondent 's counsel appears to concede , by the statement in his brief
that ". . . the Congress is currently considering a Bill addressed to this proposi-
tion ..."-this legal conclusion is soundly established on the basis of the Act pres-
ently in effect and any argument designed to accomplish an opposite result should
be addressed to the Congress.
2. The "good faith doubt" concerning majority representation
On the subject of good-faith doubt, as justification for a refusal to recognize, the
cases are legion and each stands, in large part, upon its own facts. The one standard,
however, that is applicable to all cases is that the doubt, to have the quality of
"good faith," must be predicated upon supporting facts or circumstances. A purely
subjective reaction, amounting to no more than an ipse dixit, is insufficient.
As the Board recently put it, in Laystrom Manufacturing Co., 151 NLRB 1482,
1484, reversing the Trial Examiner's finding of "good faith doubt": 12
A showing of such doubt, however, requires more than an employer's mere
assertion of it and more than proof of the employer's subjective frame of mind.
The assertion must be supported by objective considerations. The applicable
test, as defined in the Celanese case, is whether or not the objective facts furnish
a "reasonable basis" for the asserted doubt, or, put another way, whether or
not there are "some reasonable grounds for believing the Union has lost its
majority status since its certification." (Celanese Corp. of America, 95 NLRB
664 at page 673).
In the instant case, the Trial Examiner found, in effect, that Respondent had
a subjective good-faith doubt of the certified Union's majority in March 1964.
On that basis, because Respondent engaged in no independent unfair labor
practices, he sustained Respondent's principal defense and ruled that Respond-
ent had not engaged in the refusal-to-bargain violation which the complaint
alleged.
Measuring Respondent's claimed doubt of majority status by the standards
set out above, however, we must disagree with the Trial Examiner's ultimate
conclusion.
In the Laystrom case, moreover, the respondent had shown, by evidence, the facts
and circumstances upon which it predicated its doubt of the union's representative
status. In this case, as the extensive quotations from the record show. Wheatley's
first expression of doubt concerning the Union's status as collective-bargaining repre-
sentative of Respondent's employees was voiced, at newly retained counsel's dicta-
11 N.L.R B. v. Trimfit of California, Inc., 211 F. 2d 206 (C.A. 9), enfg. 101 NLRB 706;
Fred Snow, et at., d/b/a Snow & Sons v. N.L R.B, 308 F. 2d 687 (C.A. 9), enfg. 134 NLRB
709; NL.R.B. v. Loren A. Decker, d/b/a Decker Truck Lines, 296 F. 2d 338 (CA. 8),
enfg. 128 NLRB 858; Skyline Homes, Inc. v. N.LR.B., 323 F. 2d 642, 647-648 (CA. 5),
enfg. In pertinent part 134 NLRB 155; N.L.R.B. v. Philamon Laboratories, Inc., 298
F. 2d 176 (C.A. 2), enfg. 131 NLRB 80.
"In that case the union, having been certified 2 years previously by a 17 to 13 vote,
had signed a 2-year contract including a union-shop provision. Upon being requested
to bargain for a renewal, the employer refused, on the ground that it entertained a good-
faith doubt concerning the union's representation of a majority of the employees, pointing
out that 16 of those eligible to vote in the previous election had terminated their em-
ployment and that 8 new employees had been hired. As further support for its good
faith, it pointed to the lack of any history of union animus, to its filing of a petition
and willingness to abide by a Board election, and to its offer to negotiate a contract
subject to proof of union majority.
JEM MFG., INC. 651
tion, almost 4 weeks after he had personally examined the authorization cards of
every one of the employees in the unit and declared himself satisfied with their
authenticity. Moreover, this expressed "doubt" was not, at that time or since, even
claimed to be based upon any fact or related circumstance but appears to be founded,
so far as Respondent is concerned, only upon its unwillingness to accord its employ-
ees the right of self-organization provided by the Act and, so far as its present
counsel is concerned, by a desire to test the "concept," allegedly stated by "repre-
sentatives of the Board," that no case has yet arisen "requiring the determination of
the right of election ... where no interruptive influence prevail...." 13
Respondent 's argument that "the willingness of an employer to go to an election
is in itself an indication of good faith" is valid but limited, since the key word in
the phrase is "indication." The cases cited in support of the argument confirm this
interpretation: each case contains other major evidence which, with the willingness
to go to an election, contributed to the conclusion reached that there was a good-
faith basis for the doubt alleged.14
In Kellogg Mills, 147 NLRB 342, 346, the facts were almost identical with those
in this case and, as here , there were no allegations of independent interference with
employees' rights. The Trial Examiner's concluding findings, adopted by the Board's
decision,15 are as follows:
Upon the undisputed facts set forth above, I find that the Union is the majority
representative of the Company's employees in a unit appropriate for collective
bargaining. Furthermore, from all the evidence it is clear that in the card
check conducted by Father Pratt, the Union demonstrated its majority status
to the satisfaction of Father Pratt and of Kellogg, the representative of the
Company. It is not disputed that in approximately three meetings, Kellogg
recognized and bargained with the representative of the Union as to the terms
of a labor agreement. It is likewise undisputed that no question as to the
majority status of the Union was raised until the interposition of Weston,
counsel for the Company, in these events on August 8. It is a peculiar circum-
stance that though Weston, in the Company's answer, alleges a good-faith doubt
of the Union's majority in his letter of August 8 to the Union, he made no
mention of such a doubt. In that letter, his position was that the Company
"Counsel ' s statement must be regarded as hyperbolic : such cases , while unusual, are
far from unknown . The Laystrom case, which fits counsel ' s highly restrictive standards,
was published April 11, 1965, well before the hearing herein. Similarly "pure" cases-
in which no accompanying unfair labor practice was even alleged in the complaint-
include Neil R. Cullen, et al , d/b/a Cullen-Thompson Motor Company, 94 NLRB 1252,
enfd. 201 F . 2d 369 ( C.A. 10 ) ; Air Filter Sales & Service of Denver, Inc , 142 NLRB
384, and Kellogg's, Inc., d/b/a Kellogg Mills, 147 NLRB 342, enfd 347 F. 2d 219 (CA. 9).
Moreover, in Fred Snow, et al., d/b/a Snow & Sons, 134 NLRB 709, enfd 308 F. 2d 687
(C.A. 9), cited in Respondent 's brief, and several other cases , the additional unfair labor
practices charged were found not to have been committed.
14 In Briggs IGA Foodliner, 146 NLRB 443 , after demand for recognition had been
made, based upon cards , the employer questioned the employees concerning them. As
appears at page 444,
The record shows that some of the employees questioned acknowledged the fact that
they had signed cards the previous evening, but volunteered the information that their
signatures were procured by threats made by Gunn and Sergeant [the union officials]
that those who refused to sign could be discharged , and by their representation that
the cards meant nothing until there was an election.
In Cameo Lingerie, Inc., 148 NLRB 535, 545, there was evidence that cards in possession
of the union were dated by employees of the union without regard to actual dates of
signature . Moreover , as both the Trial Examiner and the Board pointed out , the plant
superintendent-
... credibly testified that numerous employees told him . . . that they did not
wish to be represented by the Union though they had signed [ cards].
In Neuman Transit Co ., Inc., 138 NLRB 659, a demand for recognition , made on behalf
of "transport tank drivers" at all of the employer ' s terminals , was followed by a strike.
The employer was found to have entertained a good-faith doubt concerning the union's
status on the basis of 2 factors : that it had no classification of employees termed "trans-
port tank drivers," so that it could not determine which employees were sought to be
represented , and that , during the strike, 30 of its employees worked and only ] 6 did not.
15 Enfd. 347 F. 2d 219 (C.A. 9).
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not recognize the Union as the representative of the Company's employ-
ees until it had received certification after an election. That position is not
tenable.
On the basis of these findings, the Trial Examiner, citing and quoting from Snow &
Sons, 134 NLRB 709,16 held that the respondent had violated Section 8(a) (5) and
(1) of the Act and recommended a bargaining order.17
The record in this case shows, beyond doubt, that the Union was designated as
collective-bargaining representative by a majority of Respondent' s employees in an
appropriate unit; that the Union requested Respondent to bargain with it as the
representative of those employees, and that Respondent, without having a good-
faith doubt concerning the representative status of the Union, has refused to
bargain with it. It follows therefrom, and I find, that, under applicable Board deci-
sions, Respondent herein has violated Section 8(a)(5) and (1) as alleged in the
complaint. Respondent's argument for a change in these decisions, based upon
the absence of other unfair labor practices and upon its contentions concerning the
"unreliability" of authorization cards, may be addressed to the Board. As a Trial
Examiner of the Board, I am required to follow its existing rules of decision.18
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 its operations described in section I, 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 commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in an unfair labor practice violative
of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Jem Mfg., Inc., is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Sheet Metal Workers' International Association, Local 270, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. All of the said employer's production and maintenance employees employed at
its Tulsa, Oklahoma, plant exclusive of office clerical employees, guards, and all
supervisors as defined in the Act constitute, and at all material times herein have
constituted, a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4 The, said labor organization was, on March 1, 1965, and at all times since has
been and is the exclusive representative of all the employees in the aforesaid unit
for the purposes of collective bargaining within the meaning of Section 9(a) of
the Act.
5. By failing and refusing to bargain collectively with the said labor organization
as the exclusive representative of the employees in the aforesaid unit, the said
employer since March 1, 1965, has engaged in, and is engaging in an unfair labor
practice within the meaning of Section 8(a) (5) of the Act.
11Enfd. 308 F 2d 087 (C.A. 9).
17N.L.R B. v. Flomatic Corp., 347 F 2d 74, 79 (C.A. 2), in which the court declined to
enforce the Board's bargaining order (147 NLRB 1304), is inapposite in this connection.
In that case no violation of Section 8(a)(5) had been found by the Board because there
had been no effective recognition demand by the union. The distinction between that case
and one like this was made clear by the court in the following words:
. . where as in § 8(a ) ( 5), an employer has refused to bargain , under circumstances
in which he was under a duty to do so because the union enjoyed the status of ex-
clusive bargaining agent, the remedy [a bargaining order] may be thought uniquely
appropriate.
18 Lenz Company, 153 NLRB 1399.
JEM MFG., INC. 653
6 By failing and refusing to bargain as aforesaid, the said employer has inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
them by Section 7 of the Act, and has engaged in and is engaging in an unfair
labor practice 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.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , it is recommended that Respondent , Jem Mfg.,
Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Sheet Metal Workers' International
Association , Local 270, AFL-CIO, as the exclusive bargaining representative of its
employees in a bargaining unit consisting of all of the production and maintenance
employees employed at its Tulsa, Oklahoma , plant, exclusive of office clerical
employees , guards, and all supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining , or coercing employ-
ees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with Sheet Metal Workers' International
Association, Local 270, AFL-CIO, as the exclusive representative of the employees
in the bargaining unit described above, with respect to their rates of pay, wages,
hours of employment , and other conditions of employment and, if an agreement
is reached , embody it in a signed contract.
(b) Post in conspicuous places at its plant and place of business in Tulsa, Okla-
homa, including all places where notices to employees are customarily posted , copies
of the attached notice marked "Appendix ." 19 Copies of said notice , to be furnished
by the Regional Director for Region 16 of the National Labor Relations Board,
shall, after being signed by a duly authorized representative , be posted by it immedi-
ately upon receipt thereof , and maintained by it for 60 consecutive days thereafter
in such conspicuous places. Reasonable steps shall be taken by it to insure that
said notices are not altered , defaced , or covered by any other material.
(c) Notify the said Regional Director, in writing , within 20 days from the receipt
of this Decision , what steps the said Company has taken to comply therewith.20
11 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the additional event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
In the event that this Recommended Order is adopted by the Board, paragraph 2(c)
thereof shall be modified to read. "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply therewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that.
WE WILL, upon request, bargain collectively with Sheet Metal Workers' Inter-
national Association, Local 270, AFL-CIO, as the exclusive representative of
all our production and maintenance employees at our Tulsa, Oklahoma, plant,
exclusive of office clerical employees, guards, and all supervisors as defined in
the Act, with respect to rates of pay, wages, hours of employment, or other
conditions of employment and, if an agreement is reached, embody it in a
signed contract.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT, in any like or related manner, interfere with, restrain, or
coerce employees in the exercise of rights guaranteed in Section 7 of the Act.
JEM MFG., INC.,
Employer.
Dated---- --------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Sixth
Floor, Meacham Building , 110 • West Fifth Street, Fort Worth , Texas, Telephone
No. 335-2145.
Pueblo Supermarkets, Inc., and Pueblo Supermarkets of St.
Thomas, Inc. and Virgin Islands Labor Union , SIU, AFL-CIO.
Case No. 24-CA-,052. January 6,1966
DECISION AND ORDER
On October 7, 1965, Trial Examiner Herbert Silberman issued
his Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices - and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
:Examiner's Decision. Thereafterthe Respondents filed exceptions
to the Trial Examiner's Decision -and a'supporting brief.
Pursuant to the provisions of Section 3(b)• of the National Labor
'Relations Act,.-.as amended, the National Labor Relations Board has
delegated its-powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins]'. ' . ,
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. Trial
Examiner's Decision , the exceptions and brief in support thereof, and
the entire record in this-case, and hereby adopts the findings, conclu-
sions,) and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
"We agree with the Trial Examiner that Respondents' rule pertaining to solicitation
and distribution is unlawful. However, we need not adopt his views or opinions of the
case as set forth in footnote 5 of his Decision.
In the absence of exceptions, we adopt, pro forma the Trial Examiner's finding that any
conduct on the part of Respondents' employee Gibert alleged to have been unlawful may
not be attributed to Respondents and therefore is not a violation of Section 8(a)(1).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge filed respectively on February 2 and
March 25, 1965, a complaint , dated March 26, 1965, was duly issued alleging that
156 NLRB No. 65.