Keller Aluminum Chairs Southern, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1968

173 N.L.R.B. 947 (N.L.R.B. 1968)

KELLER ALUMINUM CHAIRS SOUTHERN, INC. 947
Keller Aluminum Chairs Southern , Inc. and Keller
Ladders Southern , Inc., subsidiaries of Keller
Industries , Inc. and United Steelworkers of Ameri-
ca, AFL-CIO. Case 23-CA-2970
Upon the entire record in this case, the Board
makes the following:
FINDINGS OF FACT
November 21, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Upon a charge filed by United Steel Workers of
America, AFL-CIO, herein called the Union, the
General Counsel for the National Labor Relations
Board, by the Regional Director for Region 23, issued
a complaint dated March 20, 1968, against Keller
Aluminum Chairs Southern, Inc., and Keller Ladders
Southern, Inc., Subsidiaries of Keller Industries, Inc.,
herein called the Respondent, alleging that the Re-
spondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the National Labor Relations Act, as
amended. Copies of the charge and the complaint
were duly served on the Respondent and the Union.
With respect to unfair labor practices, the com-
plaint alleges, in substance, that on or about August
17, 1967, the Union was duly certified as the
exclusive bargaining representative of the Respon-
dent's employees in the unit found appropriate,' and
that since on or about October 3, 1967, and a date in
mid-March 1968, the Respondent has refused and is
refusing to recognize and bargain with the Union as
such exclusive bargaining representative, although the
Union has requested it to do so.
On May 2, 1968 the Respondent, Union, and
General Counsel submitted a "Stipulation of Facts."
On the same date all the parties petitioned the Board
to transfer the proceedings to the Board. The parties
agree that the charges, complaint, and the "Stipula-
tion of Facts" constitute the entire record in the case,
and that no oral testimony is necessary. The parties
further stipulate that they waive a hearing before a
Trial Examiner, the making of findings of fact and
conclusions of law by a Trial Examiner, and the
issuance of a Trial Examiner's Decision.
On May 7, 1968, the Board issued an order
transferring the case to the Board and permitting the
parties to file briefs. Thereafter, briefs were filed by
the General Counsel and the Respondent.
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.
1 Supplemental Decision , Order , and Certification of Representative
in Case 23-RC-2415
1. THE BUSINESS OF THE RESPONDENT
The Respondent admits and we find that it is, and
has been at all times material herein, a corporation
organized under, and existing by virtue of, the laws of
the State of Florida, having its principal offices in
Miami, Florida, and operating subsidiaries and plants
in several States of the United States, including
the States of Florida, New Jersey, and Texas. At all
times material herein, the Respondent has operated
plants at Caldwell, Texas, known as its Aluminum
Chair Plant and its Aluminum Ladder Plant, and is
now, and has been at all times material herein,
continuously engaged at its Caldwell, Texas, plants in
the manufacture, sale, and distribution of aluminum
chairs and aluminum ladders and related products.
During the past 12 months, which period is
representative of all times material herein, the Re-
spondent, at its aluminum chair and aluminum ladder
plants in Caldwell, Texas, the only facilities involved
herein, manufactured, sold, and shipped products
valued in excess of $50,000 to points outside the
State of Texas.
Respondent is now, and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material
herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
At all times material herein, the following employ-
ees of the Respondent constituted, and now consti-
tute, a unit appropriate for collective bargaining
within the meaning of the Act:
All production and maintenance employees, includ-
ing inspectors, janitors, regular part-time employ-
ees, seasonal employees, and shipping and receiving
employees employed by the Respondent at its
chair plant and its ladder plant in Caldwell, Texas,
excluding all office clerical employees, guards and
supervisors as defined in the Act.
173 NLRB No 139
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Certification
On or about June 21, 1967, a majority of the
employees in the unit described above, in a secret
ballot election conducted under the supervision of the
Regional Director for Region 23, designated the
Union as their representative for the purpose of
collective bargaining and, on or about August 17,
1967, the Board certified the Union as the exclusive
bargaining representative of the employees in the said
unit. In addition, the Board overruled the Employer's
objections to the conduct of the election.
B. The Requests To Bargain and the Respondent's
Refusal
On August 21, 1967, Joie Hughes, a representative
of the Union, sent a letter to Charles W. Prevost, plant
manager of the Ladder Plant, which was received by
Prevost on August 22. In the letter Hughes requested
that the Respondent bargain with the Union in
accordance with the certification issued 4 days
before, and requesting information regarding the
wages, hours, and working conditions of the employ-
ees so that the Union could begin evaluating its
position with respect to negotiation of a collective-
bargaining agreement.
Around the latter part of September or the first
part of October 1967, Hughes called Prevost regarding
a leave-of-absence for an employee at the Ladder
Plant. During the conversation Hughes asked Prevost
when they were going to get together regarding the
subject matter of the letter of August 21. Prevost told
Hughes that the letter had been sent to Mike Silbert,
director of labor relations for Keller.
On October 26, 1967, Hughes called Silbert who
was located in Miami, Florida. Hughes introduced
himself to Silbert and said that both Prevost and
District Director Ward of the Steelworkers had told
him that he should contact Silbert regarding the
Caldwell, Texas, plants. Hughes asked when they
could get together to formulate the rules on contract
negotiations. Silbert asked if Hughes could come to
Miami and meet the following day and Hughes said
that he could.
On October 27, 1967, Hank Keller, Jr., picked up
Hughes at the Miami, Florida, motel where Hughes
was staying, and took him to the Keller plant in
Miami to meet Silbert. Hank Keller, Jr., is the son of
the owner of Keller Industries and was introduced by
Silbert as being Silbert's assistant. The group dis-
cussed setting up meetings between the Steelworkers,
Keller and the Steelworkers' negotiating committee at
the Caldwell, Texas plant. Silbert asked Hughes if he
had seen the Austel, Georgia, or the Miami, Florida,
Steelworkers' contracts with the Respondent, to
which Hughes replied that he had. Hughes asked
Silbert if he had seen the August 21, 1967 letter that
had been sent to Prevost. Silbert replied that although
he had seen it he did not know where it was currently
and asked Hughes what information he needed.
Hughes said that he needed a seniority list, rates of
pay, number of holidays, vacation plan, pension plan
if any, and hospitalization for the employees of the
Caldwell, Texas plants. Silbert replied that he would
get the information and send it to Hughes. Silbert said
that he would probably send Hank Keller, Jr., to
conduct the meetings at Caldwell, Texas, for the
Respondent. Silbert told Hughes that Hank Keller, Jr.
would have to go to California first and that Silbert
would contact Hughes regarding when the meetings
would be held. Hughes explained to Silbert that he
needed the information as requested in the August 21
letter in order to be able to intelligently evaluate the
wage structure and make a reasonable proposal.
Silbert called Hughes on December 5, 1967, and
told Hughes that Keller was still in California. Hughes
asked Silbert to send the new Miami contract between
the Steelworkers and the Miami, Florida, Keller plant
and Silbert said he would. Hughes received this
contract around December 15, 1967. Thereafter,
Hughes attempted to reach Silbert in the latter part of
December 1967, but was unsuccessful.
In the latter part of January 1968, Hughes called
Larry Valaguire, the Plant Manager who had taken
over from Prevost around October 1, 1967, at the
Ladder Plant. Hughes asked Valaguire if the Steel-
workers could have access to bulletin boards at the
plant in order to inform employees of a union
meeting that was to take place on February 1, 1968.
Valaguire told Hughes that he did not have the
authority to act on this request and that he would
have to contact Silbert, which he would do. Hughes
called Valaguire again on the same day after returning
from Rockport, Texas, and Valaguire told Hughes
that he had not been able to reach Silbert but would
call Hughes the following day.
Hughes called Valaguire the next day and learned
from Valaguire that he had still not been able to reach
Silbert, and Valaguire suggested that Hughes attempt
to reach Silbert himself. Hughes placed calls to Silbert
but was unsuccessful in reaching him.
Shortly before the Union meeting scheduled for
February 1, 1968, Silbert called Hughes. Hughes
explained to Silbert that he would rather be able to
use the bulletin board than handbill the plant
concerning the notice of the February 1, 1968, Union
meeting in Caldwell. Silbert told Hughes that the Hod
Carriers (Laborers 666) had asked for a meeting with
the Respondent and that he felt that the Hod Carriers
should have their day in court, and therefore it was
not a good idea to let the Steelworkers use the
bulletin board at this time. Silbert told Hughes that
the meeting with the Hod Carriers was set for the
following Tuesday and that Silbert would call Hughes.
KELLER ALUMINUM CHAIRS SOUTHERN, INC
Hughes did not hear from Silbert on the Wednes-
day following the Tuesday meeting referred to above,
and began trying to reach Silbert by telephone.
Silbert called Hughes shortly thereafter and told
Hughes that the attorney for the Hod Carriers had the
flu bug, that the meeting had been reset, and that
Silbert would call Hughes after the meeting.
Thereafter, Hughes once again attempted to reach
Silbert, but unsuccessfully. In the latter part of
February or the first 1 or 2 days in March, Silbert
called Hughes. Silbert told Hughes that the meeting
had taken place, that the Respondent had a problem
because the Hod Carriers told him that they were
going to pursue their action in the Fifth Circuit Court
of Appeals and that they would hold Respondent
liable in the event that the Fifth Circuit upheld the
Hod Carriers' position.' Hughes then asked Silbert
whether that meant that they were not going to meet
concerning the Caldwell, Texas plant. Silbert said that
was right. Silbert said you do what you have to do
and I'll do what I have to do. Hughes then told Silbert
that he had no alternative but to file charges against
the Respondent in order to protect his people and the
Union. Silbert said that he understood this to be the
case. Hughes sent a letter dated March 4, 1968, which
enclosed a copy of the charge, confirming this
conversation. Hughes never received any response to
the March 4 letter. On March 20, 1968, the Board's
complaint, noted above, was issued against the Re-
spondent.
At some time after Hughes' March 4 letter, a series
of telephone calls between Respondent's attorney
Caldwell and Hughes at their respective offices in
Houston and Miami took place which culminated in a
meeting being set for April 5, 1968, at the Surrey Inn
in Caldwell, Texas, between Caldwell, Hughes and
Valaguire.
The meeting began around 9:30 in the morning and
was opened by Caldwell asking Hughes, "What are
your proposals?" to which Hughes replied, "You
know what they are." Further discussion ensued in
which it was agreed that the existing contracts at the
Georgia and Florida Keller plants with the Steel-
workers could be used as a basis and for guidelines for
their language, with respect to negotiations concern-
ing the Caldwell, Texas, plants. Hughes asked whether
the information that he had requested in his August
21 letter was available, and Caldwell told Hughes after
learning what the information was that it would be
made available and instructed Valaguire to prepare
the information. Hughes asked Caldwell if the Re-
spondent would recognize the Steelworkers as the
bargaining representative of its employees at the
Caldwell, Texas, plants, to which Caldwell replied
2 This reference is to an unfair labor proceeding involving a charge
against Respondent of unlawful assistance to the above-named union,
more fully described hereinafter.
949
that the Board had certified the Union as the
bargaining representative . Hughes asked Caldwell to
write a letter to the effect that the Respondent
recognized the Steelworkers and to send the informa-
tion he had requested concerning the seniority list,
wages , and the other information requested in the
August 21 letter. The group then went to the Chair
Plant in order that Caldwell could get a copy of the
August 21 letter. The group agreed to meet again on
April 29, 1968.
On April 23, 1968, Hughes called Caldwell to find
out where the information was that Valaguire had
been instructed to prepare . Caldwell said that he had
not yet received it and would find out about it and
send it to Hughes or he would bring it with him to the
April 29, 1968 meeting . Hughes asked Caldwell
whether he was going to put in a letter something to
the effect that the Respondent agreed to recognize
the Steelworkers as the bargaining representative of
its employees at the Caldwell , Texas , plants. Caldwell
told Hughes again about the Union having been
certified by the Board and that the Respondent was
under a duty to bargain and that he would see him at
the April 29 meeting, to which Hughes replied that
unless the Respondent agreed to recognize the Union
there wasn ' t much use to meet.
On April 23, 1968 , Caldwell sent a letter to Hughes
in which he stated that he expected to meet with
Hughes at the Surrey Inn in Caldwell , Texas, on April
29, 1968 , to continue negotiations between the
Union and the Respondent . He told Hughes that he
would give Hughes the information he had requested
regarding a seniority list, pay scale , and job classifica-
tions at that time. With respect to other information
Hughes had requested , Caldwell informed Hughes that
the Company was observing the benefits set forth in
the Respondent ' s collective-bargaining agreement
with the Hod Carriers which Hughes would have a
copy of since it had been the subject matter of the
previous litigation before the Board.
On April 25, 1968, Hughes replied to Caldwell's
letter by telegram . In the telegram he stated that the
Union was prepared to meet with the Respondent
provided that the latter was willing to recognize the
Union as the collective -bargaining representative of
the employees but, if the Respondent was unwilling
to do so , no useful purpose would be served by such a
meeting. He further stated , however , that he would be
available at the time and place specified by Caldwell if
Caldwell wished to contact him.
On April 29, 1968, the scheduled meeting took
place at the Ladder Plant around 8 o'clock in the
evening. Present were Hughes, Caldwell , "Peewee"
Edwards, the plant manager of the Chair Plant, Beth
Matcek , Laura Englemann , Delephine Marek, and
Angelina Bayers. The last four of these persons were
members of the Union 's bargaining committee.
Hughes asked Caldwell if he agreed to recognize the
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. The same answer was given by Caldwell as on
the other occasions when this subject had been raised.
Caldwell explained to Hughes that the Respondent
was in the middle with the Hod Carriers on one side
with the Board's unenforced 8(a)(2) order and the
Steelworkers on the other side with their 8(a)(5)
charges. Caldwell again asked Hughes what were the
Union demands, to which Hughes replied that he was
not going to make any demands unless the Respon-
dent agreed to recognize the Union. Further discus-
sion then took place wherein Caldwell furnished-the
information that had been requested in the August 21
letter to Hughes and the parties tentatively agreed
that if a contract was negotiated there would be one
contract covering both plants and any particular
problems as related to one or the other of the two
plants would be dealt with therein.
C. Positions of the Parties
The foregoing constitutes essentially the factual
background of this case as revealed by the parties'
stipulation. The General Counsel asserts that from
these facts it is apparent that Respondent, at all times
since the Union's initial bargaining request, has failed
to meet and engage in collective bargaining with the
Union in compliance with the requirements of Sec-
tion 8(a)(5) and 8(d) of the Act. More specifically the
General Counsel contends that during the period from
August 21, 1967, through the month of March 1968,
Respondent failed or refused to comply both with the
Union's request for bargaining meetings and with its
request for information needed for bargaining pur-
poses, and that in April 1968, although two meetings
were held between the parties, ostensibly for collec-
tive-bargaining purposes, Respondent at these meet-
ings refused to engage in genuine or meaningful
collective-bargaining negotiations. Respondent, al-
though agreeing to the stipulated facts, asserts that it
is demonstrated that Respondent has satisfied its
statutory bargaining obligation.
D. Discussion
We first take note that the Union's charge in this
proceeding was filed and served upon Respondent on
March 5, 1968. Therefore, the Board is precluded by
Section 10(b) of the Act3 from finding as an unfair
3 Section 10 (b) provides , in pertinent part
That no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon the
person against whom such charge is made . . .
4 Trailmobile Division , Pullman Incorporated , 160 NLRB 1348
5 Keller Ladders Southern , Inc., a subsidiary of Keller Industries,
Inc., 161 NLRB 21
6Local 666 , Concrete Products & Material Yard Workers ' Union,
Allied Industries Division , International Hod Carriers ' Building and
labor practice anything that occurred prior to Sep-
tember 5, 1967. The Board, however, is not precluded
by this Section from considering events which occurred
before that date for the light they may shed upon the
meaning and significance of events which occurred
thereafter.' Accordingly, for this limited purpose, we
shall include in our consideration of the factual context
of this case the Union's initial request for bargaining
contained in its letter dated, August 21, 1967, and
received by Respondent the following day.
Also we take official notice of an earlier proceeding
involving Respondent wherein the Board on October
17, 1966, issued its Decision and Orders finding that
Respondent had unlawfully assisted a union, herein
called Local 666,6 to organize the employees at Re-
spondent's Caldwell, Texas, plants here involved, and in
which the Board directed Respondent to cease and
desist from giving effect to existing contracts with that
union and to withdraw and withhold from it all
recognition as collective-bargaining representative un-
less and until it shall have demonstrated its exclusive
representative status pursuant to a Board-conducted
election. After issuance of the Board's decision in that
proceeding, Local 666 participated in the election
directed by the Board in Case 23-RC-2415' but
failed to receive a majority of the votes cast in that
election.
We have considered the entire record, including the
unfair labor practice and representation proceedings
above mentioned, and the parties' stipulation of facts
in this proceeding, and we find merit in the General
Counsel's contentions herein, for the following rea-
sons:
1. Events preceding the end of January 1968
The Union's letter of August 21, 19678 contained
an unambiguous request that Respondent "meet and
bargain with the Union for a contract" and asked that
Respondent provide the Union with information as to
the names, classifications, seniority dates, and wage
rates of the unit employees, and a description of all
insurance, vacation and pension benefits, and number
of holidays, so that the Union could begin considering
its position for negotiation of a contract covering the
unit employees. The letter closed with Union repre-
sentative Hughes' offer that "you may contact me at
the address or phone number shown on the letterhead
Common Laborers ' Union of America , AFL-CIO This is the labor
organization variously referred to in the stipulation of facts as the Hod
Carriers , the Laborers , or Laborers Local 666
7 We likewise take official notice of this representation proceeding
The Union, charging party in the present case , was selected by a
majority of the employees voting in the Board - conducted election in
that proceeding and was accordingly certified as set forth in paragraph
A, 2, supra
8 Appearing in the record as an attachment to the stipulation
KELLER ALUMINUM CHAIRS SOUTHERN, INC. 951
and we will be most happy to meet with your
company at your earliest convenience." This letter
thus presented a clear and definite request for
bargaining and constituted a demand such as clearly
to evoke Respondent's statutory duty thereupon to
meet and engage in collective bargaining with the
Union as the statutory representative of its employ-
ees.
It is apparent from the facts as stipulated that as of
September 5, 1967, the 10(b) statutory date men-
tioned above, Respondent had not as yet replied in
any manner to the Union's requests. Nor did it
thereafter do so until in late October when it
postponed the setting of any date for the bargaining
meetings, asserting that its selected representative was
not immediately available for such meetings with the
Union. Although at that time Respondent's Director
of Labor Relations, Silbert, promised to inform the
Union when bargaining meetings would be held, his
only action with respect to such meetings thereafter,
was to inform the Union once again, in early
December, that the representative selected by Re-
spondent still remained unavailable. Also the Respon-
dent, despite its promise given in response to the
Union's renewed request for needed information,
continued in its failure to provide such information.
Respondent seeks to explain this extended period
of delay during which Respondent provided the
Union with no opportunity for bargaining meetings
by pointing to various circumstances which it asserts,
in effect, show that Respondent did no less than was
required of it Principally, Respondent points to
certain facts appearing in the record, as follows: the
lapse of an interval of time, approximately a month,
which intervened after Hughes learned that the
Union's letter had been placed in the hands of Silbert,
in Miami, and before Hughes contacted Silbert, the
fact that Respondent then invited Hughes [emphasis
Respondent's] to come to Miami to "formulate the
rules" for negotiations; the fact that Respondent
informed the Union as to the identity of its intended
bargaining representative and twice informed the
Union as to this representative's unavailability; and
the fact that Respondent did furnish the Union a
copy of the contract at Respondent's Miami plant.
Respondent asserts that these facts demonstrate that
it "cooperated" with the Union by keeping it
informed of Respondent's intention to "carry forth
the issues then under discussion."
We cannot agree that the record facts establish that
during this period Respondent complied with its
bargaining obligation. The duty to bargain is defined
by Section 8(d) as "the mutual obligation ... to meet
at reasonable times and confer in good faith with
respect to wages, hours, and other terms and condi-
tions of employment, or the negotiation of a con-
tract ..." Unquestionably this obligation implies that
when confronted with a valid and unequivocal union
request for collective bargaining concerning condi-
tions of employment, a duty devolves by statute upon
the employer to proceed to meet and to negotiate
upon these subjects. Respondent did not do this but
instead postponed performance of its statutory obli-
gation. It does appear, of course, that the Union here,
for reasons which were not developed by this record
and hence are subject only to conjecture, did not
press Respondent for compliance with its requests as
frequently and as vigorously perhaps as bargaining
representatives often do.9 But it is also apparent that
Respondent throughout was fully aware of the
Union's continuing desire to meet and bargain. We
further find that the record matters to which Respon-
dent points as mitigating its delay in proceeding to
engage in actual collective bargaining are at best
unconvincing and fairly insubstantial. But we find it
unnecessary at this point to determine the lawfulness
of Respondent's conduct during this initial period,
because we believe that succeeding events are further
illuminative of this issue.
2. Events from the end of January through April 1968
Beginning in the latter part of January 1968, a
series of events occurred which, we find, clearly
disclosed the motivation of Respondent in its conduct
vis-a-vis the Union. Thus in January Respondent's
Labor Relations Director Silbert denied the Union's
request for use of bulletin boards at the Caldwell
plants to announce an employee meeting, saying that
Local 666 had asked for a meeting with Respondent,
and hence it was "not a good idea" to let the Union
use the bulletin board at that time. Later Silbert
informed the Union that Respondent "had a prob-
lem" because Local 666 had indicated its intention to
pursue its action in the Fifth Circuit Court of
Appeals' o and would hold Respondent liable in event
the court upheld Local 666's position. Silbert conced-
ed that this meant that Respondent would not meet
with the Unions i concerning the Caldwell, Texas,
plants, saying "You do what you have to do and I'll
do what I have to do."
9 We find, however , contrary to an implication in Respondent's
brief, that the stipulated facts do not establish the existence of an
agreement whereby the Union committed itself to conditioning the
conduct of negotiations upon the indefinite availability of a specified
representative of Respondent.
10 The court action thus referred to is obviously the Board's
proceeding to secure enforcement of its order in the unfair labor
practice proceeding mentioned in fn . 5, supra
II We do not agree with Respondent 's assertion that Silbert's
statement , in reply to Hughes' question , meant that Respondent would
not meet again with Local 666 rather than that it would not meet with
the Union Viewed in context the meaning appears to be clearly that
given in the text above Thus Silbert thereafter admitted that he
understood that Respondent 's position would result in the filing of
charges by the Union against Respondent
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The filing on March 5, 1968, of the Union's charge
in this proceeding resulted in certain contacts be-
tween Respondent's counsel Caldwell and Union
Agent Hughes which culminated in two meetings in
April between these and other representatives of
Respondent and the Union. It is evident, however,
that little discussion of conditions of employment
actually took place at those meetings, apparently
because of Hughes' insistence that Respondent give
the Union a direct and specific statement that
Respondent agreed to recognize the Union as bargain-
ing representative of the employees concerned. The
facts as stipulated clearly indicate that Respondent's
counsel refused to make the direct and positive
statement that the Union requested. And Respond-
ent's reply, as given , a mere reference to the fact of
the Union's certification and Respondent's conse-
quent legal obligation, we find to be substantially less
than the specific assurance of recognition of its status
that the Union sought.12 That this is so is evidenced
not only by Respondent's persistence in evading a
more direct form of reply, but more particularly by
Respondent counsel's eventual explanation for not
giving the answer sought, i.e., that Respondent
considered itself to be caught "in the middle"
between the continuing demands of Local 666, which
the Board had directed Respondent to cease, absent
its certification, to recognize, and the bargaining
requests of the Union, backed by its certification and
its charge in this proceeding seeking a bargaining
order from the Board.
We note, moreover, that both Respondent and
Local 666 had contested at each stage the conduct of
the representation proceeding which underlies the
Union's certification, asserting throughout that Re-
spondent's contracts with Local 666 were a bar to
that proceeding.13 Upon consideration of the pre-
viously recited facts and the entire record, we
conclude that Respondent did not, at any time within
the period involved in this case, possess a genuine
intention to meet and engage in meaningful collec-
tive-bargaining negotiations with the Union. This, we
further find, is shown by the stipulated facts to have
arisen from a reluctance by Respondent to relinquish
its contractual recognition of Local 666 in compli-
ance with the Board's order in the earlier proceeding,
12 It has long been settled that a certified bargaining representative
is entitled, upon request , to be recognized by an employer as the
exclusive bargaining representative of the employer 's employees
Montgomery Ward & Co, 37 NLRB 100, 121, enfd 133 F 2d 676 (C A.
9), McQuay-Norris Mfg Co, 21 NLRB 709, 715-717, enfd. 116 F 2d
748 (C .A 7), cert denied 313 U.S. 565,Piqua Munising Wood Products
Co, 7 NLRB 782, enfd. 109 F 2d 552 (CA. 6) Griswold Mfg Co, 6
NLRB 298 , 307, enfd. 106 F 2d 713 (C A 3). As the court observed in
McQuay-Norris , supra , 116 F 2d at 751, "In our view of the situation,
there could be no genuine bargaining as contemplated by the Statute
until complete recognition had been granted as the Act requires."
13 This contention was finally repeated in requests by Respondent
and Local 666 for Board review of the Regional Director 's Supple-
at least during the time that such order remains
unenforced by the appropriate Court of Appeals.
Having thus determined, we must of necessity further
find that Respondent thereby was in violation of its
duty under the Act, for it is well established that the
pendency of collateral litigation does not suspend the
duty to bargain under Section 8(a)(5).14 We there-
fore conclude that Respondent by failing and refusing
from on and after September 5, 1967, to meet and
bargain with the Union in good faith for the purpose
of negotiating an agreement covering the terms and
conditions of employees in the appropriate unit in
Respondent's Caldwell, Texas, plants has violated
Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of Respondent set forth in section III
above, occurring in connection with its operations as
described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and com-
merce 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
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it cease
and desist therefrom, and, upon request, bargain
collectively with the Union as the exclusive represent-
ative of all employees in the appropriate unit and, if
an understanding is reached, embody such under-
standing in a signed agreement.
VI CONCLUSIONS OF LAW
1. The Respondent, Keller Aluminum Chair South-
ern, Inc., and Keller Ladders Southern, Inc., subsid-
iaries of Keller Industries, Inc., is an Employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a
mental Decision and Certification of the Union, which were denied by
the Board on October 3, 1967
14 The courts and the Board have consistently so found . Old King
Cole, Inc v NLRB , 260 F 2d 530, 532 (C A 6), Lucas County Farm
Bureau Cooperative Association, 128 NLRB 458 , 471, enfd 289 F.2d
844 (C A. 6), cert denied 368 US 823, Washington Aluminum
Company, Inc , 128 NLRB 643, 645, affil and enfd 370 U.S. 9, The
Borden Company , 108 NLRB 807 , 812, enfd 227 F.2d 166 (C A. 5),
Ken Lee, Inc , 137 NLRB 1642, 1646, enfd . 327 F 2d 435 (C A 5),
Sam'1 Bingham 's Iron Mfg. Company, 111 NLRB 508, 510, enfd 227
F2d751(CA.6)
KELLER ALUMINUM CHAIRS SOUTHERN, INC.
labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees,
including inspectors, janitors, regular part-time em-
ployees, seasonal employees, and shipping and receiv-
ing employees employed by the Respondent at its
chair plant and its ladder plant in Caldwell, Texas,
excluding all office clerical employees, guards 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.
4. Since August 21, 1967, the above-named labor
organization has been the exclusive representative of
all employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing on or about September 5, 1967, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all employees of Respon-
dent in the appropriate unit, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and has thereby engaged in, and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
A. For the purpose of determining the duration of
the certification, the initial year of certification shall
be deemed to begin on the date the Respondent
commences to bargain in good faith with the Union as
the recognized collective-bargaining representative of
the employees in the appropriate unit.' 5
15 The purpose of this provision is to ensure that the employees in
the appropriate unit will be accorded the statutorily prescribed services
of their selected bargaining agent for the period provided by law See
Mar-Jac Poultry Co, Inc, 136 NLRB 785, Commerce Co, d/b/a Lamar
Hotel, 140 NLRB 226, enfd 328 F 2d 600 (C A 5), cert denied 379
U S 817, Burnett Construction Co , 149 NLRB 1419 , 1421, enfd. 350
F 2d 57 (C A 10).
953
B. Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Keller Aluminum Chairs Southern, Inc. and Keller
Ladders Southern, Inc., subsidiaries of Keller Indus-
tries, Inc., Caldwell, Texas, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with United Steelworkers of America,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees, includ-
ing inspectors, janitors, regular part-time employees,
seasonal employees, and shipping and receiving em-
ployees employed by the Respondent at its chair
plant and its ladder plant in Caldwell, Texas, exclud-
ing all office clerical employees, guards and super-
visors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization, as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and if an understand-
ing is reached, embody such understanding in a signed
agreement.
(b) Post at its Caldwell, Texas, plant, copies of the
attached notice marked "Appendix."16 Copies of
said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by
Respondent's representatives, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
16 In the event that this Order is enforced by a decree of a United
States Court of Appeals , there shall be substituted for the words "a
Decision and Order," the words "a Decree of the United States Court of
Appeals Enforcing an Order "
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify our employees that.
WE WILL NOT refuse to bargain collectively with
United Steelworkers of America, AFL-CIO, as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union as the exclusive representative of all
employees in the bargaining unit described below
with respect to rates of pay, wages, hours, and
others terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed agreement.
The bargaining unit is:
All production and maintenance employees,
including inspectors, janitors, regular part-
time employees, seasonal employees, and ship-
ping and receiving employees employed by us
at our chair plant and our ladder plant in
Caldwell, Texas, excluding all office clerical
employees, guards and supervisors as defined
in the Act.
Dated
KELLER ALUMINUM CHAIRS
SOUTHERN, INC AND KELLER
LADDERS SOUTHERN, INC,
SUBSIDIARIES OF KELLER IN-
DUSTRIES, INC
(Employer)
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, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 713-228-4296