John Deere Killefer Co.

National Labor Relations Board - Board Decisions

Oct 28, 1949

86 N.L.R.B. 1073 (N.L.R.B. 1949)

In the Matter of JOHN DEERE KILLEFER COMPANY and INTERNATIONAL
UNION UNITED FARM EQUIPMENT AND METAL WORKERS OF AMERICA,
C. 1. 0.
Case No. 01-CA-162.-Decided October p38, 1949
DECISION
AND
ORDER
On July 20, 1949, Trial Examiner Earl S. Bellman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the -copy of the Intermediate Reportr
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report, together with a supporting brief."
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Gray].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, the General
Counsel's "Comment on the Intermediate Report," and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following excep-
tions, additions, and modifications.
1. We agree with, and adopt, the Trial Examiner's findings as to
the appropriateness of the unit at all times material herein. We agree
with the Trial Examiner that the unit for which the Union was
certified on August 21, 1947, as the bargaining agent, was protected
for 1 year from that date by the provisions of Section 103 of the
amended Act. We find that thereafter, the appropriate unit consisted
I The General Counsel filed a "Comment on the Intermediate Report."
86 N. L. R. B., No. 110.
1073
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the unit as certified except for the exclusion of watchmen as guards,
as required by Section 9 (b) (3) of the amended Act.2
We agree with the Trial Examiner that such exclusion has not sub-
stantially altered the certified unit , and that the Respondent is under
an obligation to bargain with the Union as the representative of em-
ployees in the redefined unit. We shall, accordingly direct the Re-
spondent to bargain with the Union for the employees in such unit.
2. The Respondent contends in its exceptions that the original eer-
tification in this case was invalid and should be set aside. on the
ground that the challenges of the Union to six of the ballots in the
run-off election held in the representation case were improperly sus-
tained by the Board . No new evidence has, however , been adduced
by the Respondent in support of this contention . Under the circum-
stances , we reaffirm the Board 's ruling in the representation case on
the challenged ballots.3
The Respondent contends , further, that if the challenges to the
votes of the five headmen were properly sustained , the Board should
at this time set aside the run-off election, on the ground that other
leadmen with identical duties were permitted to vote therein without
challenge . The issue as to the status of such leadmen has never been
litigated . This contention , in effect, constitutes a post -election chal-
lenge to the votes of such other leadmen. Under Board policy, such
a challenge may not be entertained'
3. We agree with the Trial Examiner that the Respondent unlaw-
fully refused to bargain with the Union . However, in making this
finding we do not rely , as did the Examiner , on the position taken
by the Respondent 's representatives at the conference of June 22, 1948,
at the Regional . Office of the Board. Instead, we rely solely on the
failure of the Respondent to reply to the Union 's letter of June 21,
1.948 , requesting a bargaining conference . We therefore find that
2 See Matter of C. V. Hill & Co., 76 N. L. R. B. 158, 1.65. While excluding "guards" from
the redefined unit, the Trial Examiner refrained from finding that Respondent's watchmen
were guards, in the absence of affirmative evidence as to the proportion of time spent by
the watchmen in work as guards. However, absent any evidence to the contrary, we find
the watchmen to be employed as guards a sufficient portion of their time to bring them
within the statutory definition of guards.
a Five of these ballots were cast by leadmen, who were found by the Board in its ruling
on the challenges to be supervisors under the Act, prior to amendment. The amendment
to the Act has not changed the criteria heretofore applied by the Board in determining
who are supervisors, except that under the amended Act an employee is a supervisor if,
although lie satisfies none of the other criteria, he has authority "responsibly to direct"
other employees. We are satisfied that this additional test strengthens, rather than
detracts from , the finding heretofore made by the Board that the five leadmen whose votes
were challenged are supervisors.
4 See N. L. R. B. v. A. J. Tower Company/, 329 U. S. 324, affg. Matter of A. J. Power
Company, 60 N. L. R. B. 1414. Unlike the Trial Examiner we make no finding as to the
status of such leadmen.
JOHN DEERE KILLEFER COMPANY 1075
the Respondent refused to bargain with the Union upon receipt of
the Union's letter of June 21, 1948, and all times thereafter, in vio-
lation of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, John Deere
Killefer Company, its officers , agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union
United Farm Equipment and Metal Workers of America, affiliated
with the Congress of Industrial Organizations, as the exclusive repre-
sentative of all production and maintenance employees at its Vernon,
California, plant, including janitors and employees in the experi-
mental shop, but excluding office and clerical workers, and all watch-
men, guards, professional employees, and supervisors;
(b) In any other manner interfering with the efforts of Interna-
tional Union United Farm Equipment and Metal Workers of America,
affiliated with the Congress of Industrial Organizations, to negotiate
for or to represent the employees in the aforesaid appropriate unit is
their exclusive bargaining agent.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Union
United Farm Equipment and Metal Workers of America, affiliated
with the Congress of Industrial Organizations, as the exclusive repre-
sentative of all its employees in the aforesaid appropriate unit, with
respect to rates.of pay, wages, hours of employment, or other condi-
tions of employment, and, if an understanding is reached, embody the
understanding in a signed agreement;
(b,) Post at its Vernon, California, plant, copies of the notice at-
tached to the Intermediate Report.5 Copies of said notice, to be fur-
nished by the Regional Director for the Twenty-first Region, shall,
after being duly executed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for a period of at least sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are
6 This notice shall be amended by substituting the phrase , "A DECISION AND ORDER"
for "TIE RECOMMENDATIONS OF A TRIAL EXAMINER" in the caption , and by amehd-
ing the description of the unit to conform to the unit description in paragraph 1 (a) of our
Order . If this Order is enforced by a decree of a United States Court of Appeals, there shall
be inserted before the words : "A DECISION AND ORDER," the words: "A DECREE OF
THE UNITED STATES COURT OF APPEALS ENFORCING."
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered by
any other material ; and
(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Ben Grodsky, for the General Counsel.
Mr. James E. Neville, of Los Angeles, Calif., and Mr. S. M. Lyman, of Moline,
Ill., for the Respondent.
Mr. Russell E. Parsons, of Los Angeles, Calif., for the Intervenors.
Mr. Wyndham Mortimer, of Los Angeles, Calif., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on June 17, 1948, and an amended charge duly filed
on July 7, 1.948, by International Union United Farm Equipment and Metal
Workers of America, C. I. 0., herein called the Union, the General Counsel of
the National Labor Relations Board,' by the Regional Director for the Twenty-
first Region (Los Angeles, California), issued a complaint dated August 31, 1948,
against John Deere Killefer Company, Vernon, California, herein called the
Respondent, alleging that the Respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and (5) and
Section 2 (6) and (7) of 'L-, u National ? abor Lelatious A(- , . as ;iniend(,,J, 61
Stat. 136, herein called the Act. Copies of the complaint, accompanied by notice
of hearing and copies of the charge and the amended charge, were duly served
upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent: (1) from on or about September 6, 1947, has refused to
bargain with the Union which at all material times has been the exclusive
representative of employees of the Respondent in an appropriate unit; and
(2) by such conduct has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act.
On September 13, 1948, the Respondent filed its answer to the complaint and
on October 25, it filed, without objection as to timeliness, its supplemental answer.
In general, these two documents, which are hereafter referred to jointly as
the answer, denied that the Respondent had engaged in any unfair labor practices,
and raised several separate defenses pertaining principally to the validity of
both of the Union's charges ; the validity of the complaint in view of Section 10 (b)
of the Act; the legality and validity of two Board elections conducted in Febru-
ary 1947; the effect of a petition for decertification filed on June 7, 1948, on the
alleged refusal to bargain ; and the propriety of the conduct of two members of
the staff of the Twenty-first Region.
On October 22, 1948, the General Counsel filed a motion to strike certain parts
of the Respondent's answer. That motion was referred the same day by the
Regional Director to the Trial Examiner.
I The General Counsel and his representative at the hearing are herein called the General
Counsel ; the National Labor Relations Board is called the Board.
JOHN DEERE KILLEFER COMPANY 1077
On October 28, 1948, Howard McPherson and Dan Jones, hereinafter called
the Intervenors, filed with the Regional Director a motion to intervene which was
.referred at the opening of the hearing to the Trial Examiner.
Pursuant to notice, and to the Regional Director's order duly postponing the
hearing from October 12 to November 1, 1948, a hearing was held in Los Angeles,
'California, on November 1, 2, 3, and 4, before Earl S. Bellman, the undersigned
'Trial Examiner, duly designated by the Acting Chief Trial Examiner. The Gen-
eral Counsel, the Respondent, and the Intervenors were represented by counsel
and the Union by an official. All participated in the hearing. Full opportunity
.to be heard, to examine and cross-examine witnesses, and to introduce evidence
.bearing on the issues was afforded all parties.
At the opening of the hearing, oral argument was heard on several motions
and objections, following which several rulings were announced. The under-
signed, over objections by the Respondent and the Intervenors which pertained
to alleged defects in the charge, the amended charge, and the complaint, ad-
mitted the formal papers in evidence, holding that whether or not the Union
was in compliance with Section 9 (f), (g), and (h) of the Act was a matter
for the administrative determination of the General Counsel, and that the
,evidence would show whether a litigable refusal to bargain had occurred within
the 6-month period provided in Section 1.0 (b). Over objection of the General
Counsel, the motion to intervene, which has been referred to the Trial Examiner,
was granted to the limited extent of permitting the Intervenors to show their
,efforts to obtain decertification of the Union by the utilization of the Board's
decertification procedure! The General Counsel's motion to strike certain de-
fenses in the Respondent's answer was denied, in part; it was granted to the
extent of striking certain conclusionary statements pertaining to the conduct
,of two members of the Regional Office staff, but without striking the allegations'
.as to what actually was said and done by these two individuals.
During the hearing, the undersigned, in accordance with the apparent desires
.of all parties, incorporated by reference the entire record in a prior representa-
,tion case, hereafter called the It case, in which the Board certified the Union on
August 21, 1947 3 A motion was granted without objection, conforming all
;pleadings to the proof in respect to minor matters. At the close of the hearing,
the parties were afforded opportunity to argue orally before the undersigned and
Ito file briefs and proposed findings of fact and conclusions of law. All parties
-waived oral argument. On November 29, 1948, briefs were filed by the General
,Counsel, the Respondent, and the Intervenors.
Upon the entire record in the case, including the record in the R case,4 and
from his observation of the witnesses in the hearing conducted before him, the
,undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, John Deere Killefer Company, a wholly, owned subsidiary
of Deere and Company, is and has been since November 1, 1947, the successor
2 Various other matters which the Intervenors desired to go into , but which were barred
'.by the undersigned 's rulings , are indicated below in discussing offers of proof. See footnote
18 below.
3 Matter of Killefer Manufacturing Corporation, 74 N. L. R. B. 1344.
4 The briefs in the R case , as well as the R-case transcript and exhibits , have been duly
'considered.
867351-50-vol. 86-69
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Killefer Manufacturing Corporation , the employer in the R case ' The Re-
spondent is engaged in the manufacture of agricultural implements and road
machinery at Vernon, Los Angeles County, California.
During 1947, the Respondent purchased raw materials, equipment, and supplies
valued in excess of $500,000, of which 30 percent was shipped in interstate
commerce to its California plant from points outside the State of California..
During the same year, Respondent sold finished products valued in excess of-
$1,000,000, of which approximately 40 percent was shipped to points outside.
the State of California. The Respondent admits and the undersigned finds
that, at all times material herein, it has been engaged in commerce within the.
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED ; ITS COMPLIANCE WITH THE FILING REQUIRE-
MENTS OF THE ACT
International Union United Farm Equipment and Metal Workers of America,,
as revealed by its constitution, is a labor organization affiliated with the Congress
of Industrial Organizations ; it admits to membership employees of the Re-
spondent, whose business falls within the jurisdiction stated in the constitution
of the Union.' Official notice by the undersigned of the Board's records shows
that the Union first came into full compliance with Section 9 (f), (g), and (h)
of the Act on June 9, 1948,' and that it is presently in compliance. Since the.
Board's records show that the Union was in full compliance not only on August
31, 1948, when the complaint was issued, but also on June 17, 1948, when the.
charge was filed, and on July 7, 1948, when the amended charge was filed, the.
undersigned finds no merit in the Respondent's position that the charge and
the amended charge were both fatally defective because, in each of those charges,.
the code number of the Department of Labor's compliance letter was left out
of the blank provided for it and the space provided for the fiscal year ending for-
which financial data had been filed with the Secretary of Labor was also left
blank.'
We now turn to Local 257, composed (with one or two possible exceptions)
of employees of the Respondent, which was chartered by the Union about
February 1947. The Local never adopted bylaws of its own, but operated under
the Union's constitution. Local 257 elected officers in March 1947; Howard
McPherson, one of the Intervenors, was elected president' The last regularly
scheduled meeting of Local 257 was held in either September or October 1947..
The last two meetings of its Executive Board, which consisted of the officers:
and Wyndham Mortimer, the international representative of the Union for the
West Coast, took place in November and December 1947. Under the provisions:
5 Killefer Manufacturing Corporation was also a wholly owned subsidiary of Deere and"
Company and was engaged in the same business on the same premises . Since no issue is
raised based upon this successorship, for convenience the undersigned hereafter refers to
both the Respondent and its predecessor simply as the Respondent.
The testimony before the undersigned shows that the constitution introduced in the
R case is the same constitution under which the Union is presently operating . While the
Respondent ' s answer "puts complainant on proof" that the Union is a labor organization,
in the R case, Attorney Neville stipulated that the Union and another labor organization,
were "trade unions within the meaning of the Act."
7 Rather than on June 8, as stated at the hearing.
8 Matter of Erring Paper Mills, 82 N. L. R . B. 434 ; Matter of Shawnee Milling Company,.
82 N. L. R. B. 1266.
'The Intervenors do not purport to function as a rival labor organization . They seek
decertification of the Union , which was certified without any reference in the certification:
to Local 257.
JOHN DEERE KILLEFER COMPANY 1079
of the Union's constitution, the terms of office of Local 257's officers expired in
December 1947 and no officers were subsequently elected. The last dues collec-
tion among employees of the Respondent was in December 1947. The treasury
of Local 257 was turned over to Mortimer in May 1948; he deposited the funds
in an account maintained by the Union in a Los Angeles bank. Since Decem-
ber 1947, the only meetings of employees of the Respondent held by either Local
257 or by the Union were meetings of a few men held in August and September
1948. Those meetings were called by Mortimer and held at employees' homes.
The foregoing facts as to Local 257 are based on a stipulation entered into
by all parties at the hearing before the undersigned. Mortimer testified that the
same local which was in existence in September 1947 was still in existence. How-
ever, McPherson, the only individual to serve as president of Local 257, testified
that the local, "to all intents and purposes" had "ceased functioning" about
the end of 1947.10 On all the evidence, the undersigned finds that, for all pur-
poses material herein, Local 257 was defunct by the end of December 1947,
approximately 6 months before the charges were filed by the Union in June
1.948, and that it has not since functioned as a local1' Accordingly, the
undersigned finds that, under the circumstances of this case, the failure of
Local 257 ever to have complied with the filing requirements of Section 9 (f),
(g), and (h) of the Act, which failure the undersigned officially notices, does
not operate, under Board decisions issued subsequently to the hearing, either to
invalidate the complaint or to stay or condition the issuance of any otherwise
appropriate order that the Respondent bargain with the Union "
I:I. THE UNFAIR LAB011 PRACTICES
A. Chronology of developments
1. The R case and the certification
On January 17, 1947, United Automobile, Aircraft and Agricultural Implement
Workers of America, herein called UAW-CIO, filed a petition in Case No.
21-R-3748 for a unit composed of all the Respondent's production and main-
tenance employees, including "plant guards," but excluding office and supervisory
employees. Thereafter, on February 6, UAW-CIO, the Respondent, and the
Union executed a Stipulation for Certification upon Consent Election 11 in which
the agreed unit was stated as follows:
All production and maintenance employees, including janitors and watchmen
and employees in the experimental shop, except for office and clerical workers
10 In their brief , the Intervenors contend that "the local became defunct."
"The undersigned believes that it is not material that Local 257's charter may never
have been surrendered or revoked . The undersigned also notes that, while Article 21 of
the Union's constitution entitled "Collective Bargaining Agreements" appears normally to
presuppose the existence of a local union, he finds nothing in the Union ' s constitution which
would prohibit the Union from entering into a contract with an employer, where, as here,
its local is defunct.
12 Compare the facts in this case with the facts in the following decisions , issued between
January 25 and May 27, 1949, in which various facets of the problem of the relationship
between a parent body and its local or locals regarding compliance requirements are con-
sidered by the Board : Matter of United States Gypsum Company, 81 N. L. It. B. 292 ; Matter
of The Prudential Insurance Company of America, 81 N. L. R. B . 295 ; Matter of Bentu:ood
Products, Inc., 81 N. L. R. B. 635; Matter of Cuffman Lumber Company, Inc., 82 N. L. R. B.
296; and Matter of Tennessee Valley Broadcasting Company , 83 N. L. R. B. 895.
13 The printed form used was "NLRB-289a (11/8/43)" and is not to be confused with an
"Agreement for Consent Election."
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and supervisory employees with authority to hire, promote, discharge.
discipline or otherwise effect changes in the status of employees or effectively
recommend such action.
The election, which was duly conducted on February 13 pursuant to the
stipulation, was indecisive. Of the 149 valid votes counted, UAW-CIO received
28, the Union 57, and 64 votes were cast against both organizations. There-
after, upon request by the Union, a run-off election was duly conducted on
February 27. Of the 150 valid votes counted, 77 were for the Union, 73 were
against it. In addition, 6 ballots were challenged by the Union.
Since the Union's six 'challenges were sufficient to affect the result of the
run-off election, the Acting Regional Director investigated the challenges and
issued his report thereon on March 24, to which exceptions were thereafter
talcen.'4 On April 16, the Board remanded the case for hearing upon the issues
raised in connection with the challenged ballots. This hearing was held at
Los Angeles, California, on May 8, 9, 12, 13, 19, 20, 21, 22, and 23 before Eugene
M. Purver, hearing officer.
On August 21, 1947, the Board issued its Decision and Certification of Repre-
sentatives in the R case, 74 N. L. R. B. 1344. The Board found that the hearing
officer's rulings were free from prejudicial error and affirmed his rulings. As
set forth more fully in its decision, the Board, upon the entire record in the R.
case, found that Edward L. Lasser, a salaried employee, did not fall within
the agreed appropriate unit, and that Luther M. Russell, Gerald C. Vaughn,
Elmer Rose, Wilford 0. Carr, and Harry Merel Ashmore, five hourly paid "lead-
men" without authority to hire, discharge, or grant raises, were supervisors."
Accordingly the Board found that all six of the challenged ballots were invalid
and would not be counted. It certified the Union as the exclusive representative
of all the Respondent's production and maintenance employees, "including
janitors and watchmen and employees in the experimental shop, but excluding
office and clerical workers and supervisory employees." '°
2. The first request to bargain
On September 6, 1947, the Union, over the signature of International Repre-
sentative Wyndham Mortimer, sent a letter to D. W. Cook, the Respondent's
vice president and general manager. The letter referred to the Board's certifi-
cation of the Union as bargaining agent for the production and maintenance
employees and concluded with the following two paragraphs :
This letter will inform you of our readiness to meet with you at your
earliest convenience for the purpose of establishing peaceful and satisfactory
relations with your company.
A committee of your employees have been duly elected to meet with you or
your representatives, and are desirous of holding such a meeting as soon
as possible.
" In brief, the report recommended that the challenge as to Russell be overruled, that
the challenge as to Lasser be sustained ; and that the Board hold a hearing on the eligibility
of Vaughn, Rose, Carr, and Ashmore.
'' Six other employees also classified as leadmen voted without challenge in the run-off
election . The 11 leadmen, all of whom the Respondent contended had similar responsi-
bilities and were nonsupervisory , had voted without challenge in the original election.
'8 It should be noted that, contrary to the stipulated unit set out above and the unit in
the complaint ( which follows the stipulated unit ), the Board ' s certification contained no
language qualifying or defining supervisory employees.
JOHN DEERE KILLEFER COMPANY 1061
On September 9, Cook wrote Mortimer, acknowledging the above letter and
stating:
We cannot subscribe to the conclusions of the National. Labor Relations
Board in the matter of the ballots challenged by your union in the election
last February.
We intend, therefore, to oppose the certification order of the National Labor
Relations Board, which will keep the case open for further review by the
court.
Therefore, we must decline to meet with your union for purposes of collective
bargaining.
Whatever other reasons the Respondent may have had for declining to meet
with the Union in the fall of 1947, the only reasons expressed to the Union
were those stated in the above letter." Likewise, whatever factors may have
entered into the Union's failure to take any action following the receipt of the
Respondent's letter of September 9, it is clear that the Union (lid not make any
further requests or take any action in the matter until June .1948, after the
Union first came into compliance with the filing requirements of the Act.
Meanwhile, by the end of December 1947, as is set out in Section II above,
the Union's local at the Respondent's plant had become defunct 18
3. Developments during 1948
On June 7, 1948, the Intervenors herein, Howard McPherson and Dan Jones,
filed a petition for decertification of the Union in the same unit for which the
Board had certified it on August 21, 1947. Attached to their petition, which
" Cook testified that he also had in mind the advice of counsel that the Union slid not
have "a legal right" to ask him to bargain because it had not complied with the filing
requirements of the Act. He also testified that, in addition, he had in mind information
which lie had received from McPherson to the effect that the Union was "Communistic
led, and our people . . . wanted no part of it." On the latter matter, Cook's testimony
was corroborated by that of McPherson, who testified that he talked with Cook, apparently
some time after the Board's certification of the Union. According to McPherson, lie told
Cook, in essence, that the men were not satisfied with the Union because of Communistic
influences and that they did not want the Respondent to bargain with the Union.
'd Rulings made by the undersigned at the hearing precluded the introduction of evidence
detailing the development, of dissatisfaction with the Union and its leaders among the
members of Local 257. The type of evidence which the Respondent and the Inter-
venors repeatedly sought to introduce is best epitomized by an offer by the Intervenors,
joined in by the Respondent, to prove through testimony by McPherson, in essence,
that after McPherson was elected president of Local 257 in March 1947, the largest number
in attendance at any regular meeting was 32 ; that after about June 1947 the attendance
at meetings dropped to only 6 or 7 ; that in the interim, McPherson and other union
members "had learned of Communist affiliations of Mr. Mortimer" and had discussed that
matter among themselves and at meetings ; that at one meeting prior to September 1947
Mortimer proposed that "they give $3 a month per member to Russian Relief," which pro-
posal led to various statements in opposition from some members, including the statement
that they were "opposed to the Communist affiliations of some of the officers of the Interna-
tional, particularly Mr. Mortimer" ; that in September 1947, Mortimer advised a union
meeting at which McPherson presided that the Respondent had refused to bargain ; that
thereupon McPherson asked why Mortimer slid not "proceed against the company," but
Mortimer felt that the only way was "to pull a strike" ; that after McPherson opposed
striking, Mortimer urged strike action and introduced an official of another international
union who urged striking, offered assistance in putting "a mass of men in front of the
plant," and indicated that they would "use, force." if necessary : and that after McPherson
emphasized his opposition to such tactics the meeting unanimously voted against going
on strike.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was docketed as Case No. 21-RD-37, were several sheets containing 137 ap-
parently original signatures of what purported to be 74.4 percent of the em-
ployees in the unit.
On June 9, 1945, the Union perfected compliance with the filing requirements
of Section 9 (f), g), and (h) of the Act. About that date, Mortimer received
a letter, dated June 7, from the international president of the Union advising
him that the Union was in compliance with the Act and urging him to file an
unfair labor practice charge against the Respondent at once in order to establish
bargaining relations as quickly as possible.
Under date of June 14, Field Examiner Martin Zimring sent copies of a letter
to the Intervenors, the Respondent, and the Union (at its Los Angeles address),
advising of the filing of the Intervenors' petition for decertification and schedul-
ing an informal conference among the parties at the Regional Office for June 22.
On June 17, Mortimer, without further contacting the Respondent, filed on
behalf of the Union a charge which, while specifying no date, alleged that the
Respondent was "still" refusing to meet and bargain with the Union. Appar-
ently about the date of its filing, a copy of this charge was served on the
Respondent."
On June 21, Mortimer wrote Cook the following letter to which the Union
never received a written reply :
Once again I am requesting a meeting with you or your representatives
for the purpose of entering into negotiations, and establishing proper col-
lective bargaining relations with your company.
You are aware of the fact that the Union I represent, the United Farm
Equipment and Metal Workers of America-CIO, is the duly certified bar-
gaining agency for all your employees covered in the bargaining unit. It
is our earnest desire that this matter be terminated without further delay.
The conference scheduled by Zimring was held on June 22 at the Regional
Office. McPherson and Jones were accompanied by their attorney, Parsons.
Attorney Neville accompanied Cook and Frank Clayton for the Respondent.
Mortimer was present for the Union. Zimring opened the conference with the
statement that he wanted to discuss the Union's unfair labor practice charges.
The Respondent took the position that it had been called to the conference to dis-
cuss the decertification petition. Zimring, apparently in connection with some
questions addressed chiefly to Parsons, McPherson, and Jones, indicated his
belief that the petition for decertification should be dismissed because it was
premature, although Parsons advanced arguments which he contended warranted
entertaining the petition at that time. Neville stated that the Respondent found
itself in the peculiar position of being confronted with a charge by the Union
for refusing to bargain and "the demand of the men not to bargain." Before
the meeting adjourned, Parsons stated that the Respondent had no right to
bargain with the Union and that it would "be liable for action" if it did so.
While Cook did not discuss the matter directly with Mortimer during the con-
ference in Zimring's office, it is clear that the position taken at that conference
by the Respondent in Mortimer's presence constituted a refusal to bargain with
19 While the General Counsel did not introduce in evidence proof of service of the charge
or the amended charge at any time prior to the issuance of the complaint to which both
charges were attached , Cook's testimony establishes that he was "served with an unfair
labor practice charge" almost immediately after he had received the letter of June 14
about the decertification petition.
JOHN DEERE KILLEFER COMPANY 1083
the Union on the ground that the Respondent was confronted with conflicting
claims2°
On June 28, Parsons, on behalf of McPherson and Jones , wrote the Respondent,
attention Cook. This letter adverted to the decertification petition , stated that
the Union which had requested bargaining did not represent a majority of the
Respondent 's employees , as the decertification petition bad the signatures of
approximately 75 percent of the employees attached to it; directed that the
Respondent not meet with the Union for bargaining purposes but await further
information which would convince it and the Board that the Union should not
be permitted to bargain for the employees "who are represented by my clients" ; 21
and warned that failure to respect the above "directions ... may force us to
take action against you."
Also on June 28, Parsons wrote Zimring a two-page letter , contending that
the decertification petition involved "an unusual and novel situation " in that
the Union had utterly failed "to act for these men," and citing legal precedent
to support a demand made in the letter for an investigation and hearing on
the decertification petition before the certification had run one full year.
On June 30 , the Regional Director wrote the Intervenors , copies to tho
Respondent and the Union , dismissing the decertification petition on the ground
that, under principles established by prior Board decisions which he deemed
controlling , the Board 's certification of the Union constituted "a bar to in-
vestigation of representatives at this time."
On July 7, the Intervenor filed with the Board a ' seven-page petition for
review of the Regional Director 's dismissal in Case No . 21-RD-37. This peti-
tion set out many of the facts narrated above, some of them in considerably
greater detail . Also on July 7, the Union filed its amended charge alleging
refusal to bargain , following requests made in "September 1947, and again in
.June 1948 ." Sometime later, the General Counsel 's representative in the in-
.stant matter , Ben Grodsky , telephoned Cook about the amended charge, which
Cook acknowledged having received , and indicated that if the Respondent did
not intend to bargain with the Union , the case would proceed to hearing.
There were no further developments until the complaint issued on August 31,
with notice of hearing for October 12 . On September 15 the hearing was post-
poned to November 1. In the meantime , on October 13, the Board informed the
Intervenors by letter , copies of which were sent to the Union and the Respondent,
that upon consideration of the petition for review it was sustaining the Regional
Director 's decision in Case No . 21-RD-37 because an unfair labor practice charge
against the employer was pending in Case No . 21-CA-16222
On October 22, the Intervenor filed with the Board a petition for rehearing in
Case No. 21-RD-37 . The Board notified the Intervenors by letter dated Octo-
ber 28, copies to the Respondent and the Union , that after careful consideration
of the petition for rehearing , such petition was denied "on the grounds that the
filing of the petition for decertification was premature and that in any event the
20 The above findings as to this conference are made upon the undersigned 's appraisal
of Cook's testimony , from which the quoted material is taken.
21 It should be noted that , at least at the time of the hearing , the Intervenors did not
purport to be a labor organization or to serve as a collective bargaining agency.
20 While the Board 's letter, as copied into the record , shows that a copy thereof was
sent to the Respondent , Cook testified that he had not been advised whether the Board
had taken any action on the first decertification petition until after he had received the
second petition for-decertification about October 29.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition would not be processed during the pendency of a complaint . . . involving
a refusal to bargain by the Employer with the incumbent union." 23
A second petition for decertification of the Union in the unit for which it had.
been certified was filed by the Intervenors just prior to the opening of the hearing'
in the instant matter 24 This petition was docketed as Case No. 21-RD-58.
Appended to this second petition were no signatures but rather a typed list of'
111 names compiled by striking from the list of signatures appended to the first
decertification petition the names of all those employees who had subsequently
left the Respondent's employ.
On the first day of the hearing before the undersigned, the parties were all
served with copies of a letter dated November 1, 1948, in which the Regional
Director stated that he was dismissing the second petition in Case No. 21-CA-59
on the ground that, under controlling Board decisions, "it does not appear that
further proceedings seem warranted inasmuch as unfair labor practice charges
are pending against the employer and a complaint has been issued in Case
No. 21-CA-162 and inasmuch as the certification issued by the Board in Case
No. 21-R-3748, never having been honored by the employer, constitutes a bar
to investigation of representatives at this time." On November 4, 1948, the final
day of the hearing, the Intervenors' attorney stated that no appeal had been
filed and that they had "some days yet to seek a review of this second order,
if we so elect."
B. Conclusions as to the refusal to bargain
1. The appropriate unit and the Union's majority therein
The complaint alleged and the Respondent's answer, by its silence with respect
to the unit, admitted u that all production and maintenance employees including
janitors and watchmen and employees in the experimental shop, except for'
office and clerical workers and supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status of em--
ployees or effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
The above alleged and admitted unit is the same as that set out in the Stipula-
tion for Certification upon Consent Election dated February 6, 1947. The unit
for which the Board, pursuant to the run-off election and the hearing and deci-
sion on challenged ballots, certified the Union on August'21, 1947, was the same
except that it contained no characterization whatsoever of supervisory em-
ployees. The unit of certification, which was followed by the Intervenors in,
both decertification petitions, was defined in the Board's Decision as "all produc-
tion and maintenance employees . . . including janitors and watchmen and
employees in the experimental shop, but excluding office and clerical workers,
and supervisory employees."
While the unit, as such, was not challenged in the pleadings, at the hearing,
or in the briefs, two matters must now be considered: (1) the Respondent's
23 This letter also stated that while only the latter ground had been mentioned in the
Board's letter of October 13, the Board had sustained the Regional Director's dismissal on
both grounds.
24 The copy of this petition in evidence erroneously shows the date as October 2 ; the
transcript references to this petition give the date of filing as October 28 and also as
October 29. The undersigned believes that the correct date is October 29.
25 It is clear from statements of counsel for the Respondent at the hearing that the-
Respondent understood and intended that this silence would constitute such an admission.
Further , the Respondent raises no question as to the unit in its brief.
JOHN DEERE KILLEFER COMPANY 1085
contention in its answer that the certification is void because the Union was not
legally certified, and (2 ) the question of whether certain exclusions from the
unit, made necessary by the 1947 amendments to the Act, constitute a substan-
tial modification of the appropriate unit.
The crux of the Respondent's contention that the certification is illegal and
void is that the Board sustained the Union's challenges of six ballots which were
cast by employees who were at the time "proper and legal voters within the
unit." Other than requesting that the record in the R case be incorporated by
reference in the record in the instant matter, the Respondent did not seek to
introduce any evidence bearing on the foregoing contention. While the Re-
spondent's brief in the R case, which has been duly considered, sets forth in
detail its position on this matter, the brief which the Respondent filed with the
undersigned does not discuss the above issue. Thus there is nothing in the
complete record before the undersigned on the issue of the six challenged bal-
lots which was not before the Board when it issued its decision and certifica-
tion on August 21, 1947, the day before the effective date of the amendments
to the Act 26
While the Board's determinations in the R case are not res judicata in the
instant matter, in a complaint case where, with respect to the R-case issues,
no new evidence has been adduced and no additional cogent showing has been
made, the Trial Examiner is under no duty to consider and decide de novo the
issues raised in the R case." Thus, it is not necessary for the undersigned
to determine whether, upon the basis of the record in the R case, he would
have reached the same conclusions as the Board. Nor does it appear, in view
of the Board's recent decision in the Grace Company ease ,21 to be incumbent
upon the undersigned to pass upon whether the Board acted arbitrarily and
capriciously in the R case, which is the gist of the Respondent's contention that
the R-case decision is illegal and void 20
In view of the above, the undersigned concludes and finds that on August 21,
1947, and for 1 year thereafter, as provided in Section 103 of the Act,30 the
Union, by virtue of the Board's Decision and Certification of Representatives,
'74 N. L. R. B. 1344, was the duly designated and exclusive representative, pursu-
ant to Section 9 (a) of the Act, of a majority of the employees at the Respondent's
plant at Vernon, California, in a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act, said unit consisting
of all production and maintenance employees, but excluding office and clerical
workers and supervisory employees. The undersigned further finds, upon the
entire record herein, that the foregoing unit, despite the omission of language
26 In the undersigned 's opinion , procedural modifications made by the amendments are
not retroactive in application . Cf. N. L . R. B. v. The Pittsburgh Steamship Company,
337 U. S. 656.
27 Matter of Pacific Greyhound Lines, 22 N. L. It. B. 111, 124; Matter of Swift and
Company, 63 N. L . R. B. 718 , 723; Matter of the Midland Steel Products Company, 71
N. L. It. B. 1379, 1384; Matter of Atlanta Brick and Tile Company, 83 N. L. It. B. 1154.
28 Matter of The Grace Company, 84 N. L. R. B. 435.
29 It is evident , however , that the Board may, upon its own reconsideration in a complaint
case of its R-case determinations , set aside its own certification. See Matter of Midland
Steamship Lines, Inc., 66 N. L. R. B. 836.
3° This section , so far as here material , provides
No provisions of this title shall affect any certification of representatives or any
determination as to the appropriate collective-bargaining unit , which was made under
Section 9 of the National Labor Relations Act prior to the effective date of this
title until one year after the date of such certification. . . .
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
describing supervisory employees, is the same unit as that alleged and ad-
mitted in the pleadings 31
We turn now to the second major question, whether any substantial modifi-
cation in the unit will result from the exclusion therefrom of "all guards, profes-
sional employees, and supervisors as defined in the Act." 3s These exclusionary
modifications must be made by the undersigned to conform the unit to the
amendments to the Act 33
As to the exclusion of "supervisors as defined in the Act," while the matter
is not without doubt, the undersigned finds, upon consideration of the record
as a whole, that the five leadmen, whom the Board excluded from the unit by
its certification, are supervisors as defined in Section 2 (11) of the Act and
that the other leadmen who were not excluded, and whom no one contends
should be excluded, are not such supervisors3' It is therefore apparent that
the addition of the phrase "as defined in the Act" to describe the supervisors
to be excluded will not alter the unit.
We now turn to the exclusion of professional employees as defined in the Act.
The specific inclusion of "employees in the experimental shop" raises the ques-
tion of whether any professional employees were thereby included in the unit.
However, the testimony in the R-case record of Luther M. Russell, the excluded
hourly paid leadman in the experimental shop, as to the duties of the other
six men employed in that shop, establishes that those six men perform a variety
of skilled and semiskilled functions, including laying out, machining, welding,
31 A study of the evidence in the R case, and of the findings in the Board's decision
therein indicates that the Board, in determining that the ballots of the five leadmen
challenged as supervisors should not be counted because each of the five was, in fact,
a supervisor, followed the practice of determining supervisory status in line with criteria
which were then customarily summarized in the language used in the complaint.
31 As to the definition of supervisors, see Section 2 (11) of the Act; as to professional
employees, Section 2 (12) ; and as to guards, Section 9 (b) (3).
33 See the Board's Amended Decision of December 17, 1948, in Matter of The Ohio
Power Co., 80 N. L. R. B. 1334, issued shortly after the hearing herein, where the Board
reconsidered the supervisory status of certain control operators in terms of the definition
of supervisors contained in Section 2 (11.) of the Act, especially the phraseology "respon-
sibly to direct." In its original decision of August 19, 1948, in that case, 78 N. L. R. B.
1134, the Board had relied on its certification of June 10, 1947, which had used the
then current language describing supervisors, identical with that used in the complaint
herein. In its original decision the Board apparently had relied upon the theory that if an
unremedied refusal to bargain had occurred prior to the end of the 1-year period of con-
tinuing efficacy guaranteed its certification by Section 103 of the Act, "the period during
which the certification has not had an opportunity to function should be tolled from the
computation of the 1-year period." See footnote 4, 78 N. L. R. B. 1139.
34 No purpose would be served by detailing the numerous matters which the undersigned
has considered in connection with the extensive and highly contradictory testimony in the
It case in reaching his over-all conclusions on this point. In general, the undersigned is
satisfied , for reasons in line with those stated in the Board's Amended Decision in the Ohio
power case, 80 N. L. R. B. 1334, that the addition in Section 2 (11) of the phrase "or
responsibly to direct them" to the Board's previously used description of supervisors, makes
no material difference when applied to the 5 leadmen excluded in the R case. The Board's
decision in the R case shows that the factor of responsibility to direct employees entered,
in varying degrees, into its determination to exclude each of the 5 leadmen. As' to
whether or not some of the other 6 employees carried on the pay roll as leadmen, and even
possibly additional employees referred to in the record as leadmen, among them the
so-called chief inspector, are also supervisors within the meaning of the Act, there may
be some question. However, no party at any stage of this case has sought to exclude
any of the leadmen. Further, the Respondent's position in the R case was that none
of the 11 employees classified as leadmen were supervisors, and that all of them belonged
in the unit . Everything considered, the undersigned is not persuaded that any of the
remaining leadmen have sufficient responsibility to be excluded as supervisors within the
meaning of the Act.
JOHN DEERE KILLEFER COMPANY 1087
forging, assembling , and testing , on experimental models. In the undersigned's
opinion, none of those six hourly paid employees is a professional employee as
defined in the Act. Hence there were no professional employees in the unit of
production and maintenance employees certified by the Board , and the specific
, exclusion of professional employees will not change the unit.
The situation as to the exclusion of guards as defined in the Act is not quite so
clear. Evidently the Respondent has no employees specifically classified as
guards . It does have watchmen who , along with janitors , are diagrammed on
an organizational chart of the Respondent introduced in the R case as responsible
to "F. A. Clayton, Personnel, Safety and Employment." It will be noted that
while the original petition of UAW-CIO asked specifically for the inclusion of
"plant guards" and made no mention of watchmen or janitors , the stipulated
unit agreed to by UAW-CIO, the Union and the Respondent specifically included
watchmen and janitors but made no mention of plant guards. The undersigned
has not been able to determine from the record in the R case how many watch-
men there are in the unit, but in a plant of only approximately 170 production
and maintenance employees, the number presumably would be small, perhaps
not more than 2 or 3. Nor is there any specific evidence in the R-case record
as to these uncontested watchmen to show just what functions they perform
and what proportion of their time they devote to their various functions. There-
are, however, several incidental references in the testimony in the R case to one
or more employees at the plant gate, sometimes called a watchman and sometimes
called a guard, whose duties, at some time in the past at least, appear to have
fallen in some respects within the Act's definition of guard."
If, in fact, any of the Respondent's employees presently spend a sufficient
proportion of their time performing the functions of guards as defined in the
Act to warrant their exclusion under Board decisions, such employees, whatever
they may be called, must be excluded for current bargaining purposes from the
unit of production and maintenance employees.36 This will be done by adding
"guards as defined in the Act" to the exclusions from the unit. On all of the
evidence, it is the undersigned's opinion that the number of such guards, if
indeed there be any, is not substantial, and that the exclusion of such guards
does not materially alter the unit of certification or. operate to render it
inappropriate."
In the light of the foregoing, the undersigned finds that on and after August
22, 1948, the date upon which the 1-year period of continued efficacy of the
certification provided by Section 103 of the Act had expired, the appropriate
unit, by virtue of the amendments to the Act, became and is hereby redefined as
35 For instance , there is testimony that "the guard from the gate" came in and got
an employee for whom he had a message. Again, "The guard, the night watchman came
back there and got a man out of the forge department one night." It is evident from the
testimony concerning employee passes that at times other than : regular shift changes,
employees presented duly signed passes, "for the watchman to open the gate and let them
out" and there is further testimony that "instructions are that watchmen are not to., let
people in or out of the plant without a pass." It should be noted that such fragmentary
testimony , which came into the R-case record on watchmen or guards , came in only
incidentally to explain other matters which were then in issue.
30 Matter of C. V. Hill d Company, Inc., 76 N. L. R. B. 158,.165 ; Matter of Bentioood
Products, Inc., 81 N. L. R. B. 635.
37 Cf. Matter of American District Telegraph Company. 84 N. L. R. B. 162. R'hile the
question of which, if any, of the respondent's watchmen should'be-excluded from the unit
as guards may become a problem on compliance, the undersigned does not believe*it expe-
dient to reopen the hearing on this matter, especially since no question of this type was
raised by any of the parties and, in fact, no such question may actually exist . Cf. flatter
of Alabama Marble Company, 83 N. L. R . B. 1047.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all production and maintenance employees of the Respondent's plant at Vernon,
California, including janitors and watchmen and employees in the experimental
shop, but excluding office and clerical workers, and all guards, professional
employees, and supervisors as defined in the Act. The undersigned further
finds, on the record as a whole, that the foregoing redefined unit does not vary
materially from the unit for which the Board certified the Union and that said
-redefinition does not negate or modify the Respondent's obligations under the
Act with respect to bargaining with the Union. We now turn to the considera-
tion of whether or not other factors in this case modify or negate the Respondent's
obligations to bargain with the Union.
2. The refusal to bargain
The facts narrated above in Section III, A, show that the Respondent, by its
letter of September 9, 1947, declined to meet with the Union for the purposes of
collective bargaining because it did not accept the Board's certification issued
the preceding month. It is plain, however, that no charge of refusal to bargain
was filed by the Union until June 17, 1948, more than 9 months later, and that
the Union made no additional request to bargain until its letter of June 21,
1948. In the undersigned's opinion, the provision in Section 10 (b) of the Act,
which bars the issuance of a complaint based upon an unfair labor practice
occurring more than 6 months before the filing and service of a charge, operates,
under the circumstances of this case, to bar a finding of refusal to bargain in
violation of the Act upon the basis of the clearly established fact that the
Respondent did refuse to bargain on September 9, 1947. However, the evidence
as to what transpired at this earlier period was clearly admissible to establish
a frame of reference for subsequent developments which do fall within the
6-month period provided in Section 10 (b).
As to this earlier period, the General Counsel contends, in essence, that while
a finding of violation of the Act based on the September 9 refusal to bargain is
"barred by the statute of limitations," the Respondent, for a year from the date
of the certification was "under a continuous duty to bargain with such certified
Union," and that the Respondent's continued inaction after the letter of Septem-
ber 9 constituted a continuing refusal to bargain which, upon the filing, of the
charge on June 17, 1948, became "an actionable violation of the Act," that is to
say a "continuing refusal to bargain from on.or after December 18, 1947." In
brief, the Respondent contends that it was under no obligation to bargain with a
noncomplying union ; 38 that "Congress never intended that compliance should
operate retroactively";: that the alleged refusal to bargain on September 9, in
the absence of subsequent requests, cannot establish a continuing refusal to
bargain ; that the "disintegration of the Union followed its refusal to comply"
because it could not then act effectively on behalf of the employees and that
the failure of the Union to comply earlier "should not operate to increase any
protected period of certification."
A number of very interesting questions, some apparently novel in nature, are
raised by the above-summarized positions on this "continuing refusal to bargain"
issue. For instance, even absent the Section 10 (b) aspect of this case, which
certainly precludes any finding of "continuing refusal to bargain" until after
mid-December 1947 when Local 257 had become defunct, the fundamental ques-
tion of whether an employer is required by the Act to bargain with a noncomply-
ing union does not yet appear to have been decided by the Board. The General
`8 The date of compliance was June 9, 1948.
JOHN DEERE KILLEFER COMPANY 1089
Counsel cites no cases on that issue. The citations in the Respondent's brief,
while persuasive by implication, are not squarely in point. And while some
three Trial Examiners have considered this problem in recently issued Inter-
mediate Reports, the facts in those cases are clearly distinguishable from the
facts in the case at bar. After due consideration of the several facets of the
General Counsel's continuing refusal to bargain theory, and in view of the
findings made hereinbelow as to the refusal to bargain after the Union's letter
of June 21, 1948, the undersigned deems it unnecessary to pass upon the various
contentions raised in connection with the continuing refusal theory. Accord-
ingly, the undersigned makes no finding of continuing refusal to bargain, action-
able under the Act, from on and after December 18, 1947.
As to the developments in the summer of 1948, the facts show that, after the
Union had come into full compliance with the filing requirements of the Act, and.
just 10 months after it had been certified by the Board, the Union, by its letter
of June 21, 1948, again requested the Respondent to bargain. The Respondent.
contends, in its brief, that the petition for decertification which had been filed
in the meantime by the Intervenors on June 7, 1948, relieved it of any responsi-
bility to bargain with the Union. It is clear that the position which the Respond-
ent took, in the Union's presence at the conference at the Regional Office on
June 22, constituted a refusal to bargain with the Union on the ground that the
Respondent was confronted with conflicting claims:" It is thus manifest that
on June 22, 1948, almost 2 months before the first anniversary of the Board's
certification of the Union, the Respondent took essentially the position taken in
its brief, that it was not required to bargain with the Union because of the filing
of the petition for decertification. Assuming that the Respondent took the
position it did in good faith, and assuming further that the Union had, in fact,
lost its majority for reasons such as the Respondent and the Intervenors offered
to prove, the undersigned is satisfied, from his study of the development of Board
policy with regard to honoring its certifications, that the Respondent refused to
bargain within the meaning of the Act by refusing to honor the Board's certifica-
tion of the Union prior to the expiration of that certification's first year. Three
Board decisions supporting this position will now be briefly considered.
The Lift Trucks decision " 0 of January 23, 1948, relied upon by the General
Counsel, spells out in considerable detail the Board's reasons for requiring that
its certifications be honored for at least a year, except "under unusual circum-
stances," which are not defined therein, or elsewhere,, to the undersigned's
knowledge. In the Board's more recent decision of November 23, 1948, in the
M1engel case" the development and rationale of the 1-year rule in relation to
stability in industrial relations is quite fully traced, with copious citations. The
Board reached its decision in that case upon the assumption that the certified
union therein "had lost its numerical majority at the time" of the refusal to
bargain. In fact, the Board emphasized its position on that point by stating that
its decision "would not be altered by proof that the Independent [a union com-
peting with the certified union] was designated by all employees in the unit."
39 Within about 2 weeks of that refusal , the Union ' s amended charge of July 7 was filed.
In the meantime , on June 30, the Respondent had received a copy of the Regional Director's
letter dismissing the Intervenors ' petition on the ground that the Board 's certification
of the Union constituted "a bar to investigation of representation" at that time. The
Board later upheld the Regional Director 's action.
49 Matter of Lift Trucks, Inc., 75 N. L. R. B. 998.
31 Matter of The Mengel Company, Fibre Container Division, 80 N. L. R.. B. 705.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, in its decision of May 11, 1949, in the Belden Brick case,42 the Board
found, in a situation where the elapsed periods closely parallel those in the
instant matter," that a decertification petition filed within the certification year
did not excuse that respondent's refusal to bargain, although that respondent
contended that a valid question concerning representation had thereby been
raised.
The Respondent and the Intervenors contend, in essence, that the instant mat-
ter involves such unusual circumstances as to make it an exception to the 1-year
rule on certifications. There are some unusual circumstances in the case at bar,
and the undersigned has duly considered all of the contentions and citations rela-
tive thereto. However, in view of the basic reasons for and the uniformity in
the application of the Board's 1-year rule, as exemplified by the foregoing deci-
sions and in numerous cases cited in them, and in the absence of any policy
determination by the Board that its certifications are defensible in less than a
year upon proof adduced in a complaint case that a majority of the employees
have become dissatisfied with the certified union for reasons such as those
advanced in the offers of proof in the instant matter," the case at bar is not an
exception to the 1-year rule. Accordingly, the undersigned concludes and finds
that the Board's certification of August 21, 1947, was binding upon the Respond-
ent at the time of the Union's second request to bargain on June 21, 1948; that
the Respondent, by refusing on June 22, 1948, and at all times thereafter, to
bargain with the Union, has refused to bargain collectively in good faith with
the Union as the exclusive representative of the employees in an appropriate
unit, as required by the Act; and that the Respondent has thereby interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with the operations of the Respondent set forth 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 and is engaging in unfair
labor practices, it will be recommended 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 bargain collectively with
the Union, it will be recommended that the Respondent, upon request, bargain
with the Union for the employees in the unit as redefined to conform to the
Act, and embody in a signed agreement any understanding which may be reached.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following: 95
42 Matter of The Belden Brick Co., 83 N. L. R. B. 465.
43 The certification in that case was dated March 24, 1947 ; the decertification petition
was filed January 23, 1948 ; and the refusal to bargain was found as of February 3, 1948.
14 See footnote 18 hereinabove.
45 What follows is based upon the assumption that the Board will reaffirm its decision
and certification in the R case , after such reconsideration as it deems appropriate . But cf.
Matter of Midland Steamship Line, Inc., 66 N. L. R. B. 836.
JOHN DEERE KILLEFER COMPANY
CONCLUSIONS OF LAW
1091-
1. International Union United Farm Equipment and Metal Workers of Amer-
lea, affiliated with the Congress of Industrial Organizations, is a labor organ-
ization, within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondent's plant at
Vernon,. California, including janitors and watchmen and employees in the
experimental shop, but excluding office and clerical workers, and all guards,
professional employees, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of. collective bargaining, within the meaning of
.Section 9 (b) of the Act. •
3. International Union United Farm Equipment and Metal Workers of Amer-
.ica, affiliated with the Congress of Industrial Organizations, was on August 21,
1947, and at all times thereafter has been the exclusive representative of all
,of the employees in the above appropriate unit,98 within the meaning of Section
.9 (a) of the Act.
4. By refusing about June 22, 1948, and at all times thereafter to bargain
collectively with International Union United Farm Equipment and Metal Work-
ers of America, affiliated with the Congress of Industrial Organizations, as the
,exclusive representative of all of its employees in the aforesaid appropriate unit,"
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8 (1) of the
Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
.commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings',of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that the Respond-
ent, John Deere Killefer Company, Vernon, California, its officers, agents, suc-
,cessors, and assigns, shall :
1. Cease and desist from:
(a) Refusing to bargain collectively with International Union United Farm
'Equipment and Metal Workers of America, affiliated with the Congress of
Industrial Organizations, as the exclusive representative of all of its employees
in the above-described appropriate unit ; and
(b) In any other manner interfering with the efforts of International Union
United Farm Equipment and Metal Workers of America, affiliated with the
Congress of Industrial Organizations, to negotiate for or to represent the em-
ployees in the aforesaid appropriate unit, as their exclusive bargaining agent.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(•a) Upon request, bargain collectively with International Union United Farm
Equipment and Metal Workers of America, affiliated with the Congress of
46 See footnote 47 below.
91 It should be noted that it has been found above that the certified unit, which continued
in effect for a year and was actually the unit in effect on June 22, 1948, and for about 2
months thereafter , does not vary materially from the redefined unit which is used in this
.section of the Intermediate Report.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Organizations, as the exclusive representative of all its employees in,
the aforesaid appropriate unit, with respect to grievances, labor disputes, wages,.
rates of pay, hours of employment, or other terms or conditions of employment,
and, if an understanding is reached, embody the understanding in a signed.
agreement ;
(b) Post at its Vernon, California, plant, copies of the notice attached hereto
marked Appendix A. Copies of said notice, to be furnished by the Regional
Director for the Twenty-first Region, shall, after being duly executed by the
Respondent's representative, be posted by the Respondent immediately upon.
receipt thereof, and maintained by it for a period of at least sixty (60) consecu-
tive 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 such notices are not altered, defaced, or covered by
any other material ; and
(c) Notify the Regional Director for the Twenty-first Region in writing, within.
twenty (20) days from the date of the receipt of this Intermediate Report, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the National Labor Relations Board issue an
order requiring the Respondent to take the action aforesaid, unless the Re-
spondent notifies said Regional Director in writing, on or before twenty (20)
days from the date of the receipt of this Intermediate Report, that it will comply
with the foregoing recommendations.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date of
service of the order transferring the case to the Board, pursuant to Section 203.45
of said Rules and Regulations, file with the Board, Washington 25, D. C., an
original and six copies of a statement in writing setting forth such exceptions to
the Intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of a.
brief in support of the Intermediate Report and Recommended Order. Imme-
diately upon the filing of such statement of exceptions and/or briefs, the party
filing the same shall serve a copy thereof upon each of the other parties. State-
mehts of exceptions and briefs shall designate by precise citation the portions
of the record relied upon and shall be legibly printed or mimeographed, and if
mimeographed shall be double spaced. Proof of service on the other parties.
of all papers filed with the'Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46, should any party desire
permission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules-
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.-
Dated at Washington, D. C., this 20th day of July 1949.
EARL S. BELLMAN,
Trial Examiner..
JOHN DEERE KILLEFER COMPANY 1093
APPENDIX A
NOTCE 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 National Labor
Relations Act, we hereby notify our employees that:
EVE WILL NOT in any manner interfere with the efforts of INTERNATIONAL
UNION UNITED FARM EQUIPMENT AND METAL WORKERS OF AMERICA, affiliated
with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, to negotiate for or to
represent the employees in the bargaining unit described below.
AVE WILL BARGAIN collectively, upon request, with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed below with respect to rates of pay, wages, hours of employment,
grievances, and all other conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agreement. The bar-
gaining unit is:
All production and maintenance employees at the Vernon, California, plant
of the undersigned Employer, including janitors and watchmen and em-
ployees in the experimental shop, but excluding office and clerical workers,
and all guards, professional employees, and supervisors as defined in the
Act.
JOHN DEERE KILLEPER COMPANY,
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.
867351-50-vol. 86-70