The Cross Co.

National Labor Relations Board - Board Decisions

May 11, 1960

127 N.L.R.B. 691 (N.L.R.B. 1960)

THE CROSS COMPANY 691
CONCLUSIONS OF LAW
1. Macatee , Inc., Dallas, Texas , is engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. Dallas General Drivers, Warehousemen and Helpers Local Union No. 745.
Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization as defined in Section 2(5) of the Act.
3. By picketing Macatee, Inc., on and after June 24, 1959, and September 2,
1959, an object thereof being to force or require Macatee , Inc., to recognize and
bargain collectively with the Respondent , when it did not represent a majority of
the employees in the unit involved, the Respondent thereby restrained and coerced
the employees of Macatee , Inc., in the exercise of the rights guaranteed in Section 7,
in violation of Section 8(b) (1) (A) of the Act.
4. By picketing Macatee, Inc., from November 13 to 27, 1959, by threatening to
picket on December 31, 1959, and by picketing from January 4 to January 8, 1960,
an object thereof being to force or require Macatee, Inc., to recognize and bargain
collectively with the Respondent , when it was not currently certified as the repre-
sentative of the employees in the unit involved , where within the preceding 12
months a valid election under Section 9(c) of the Act had been conducted, the
Respondent thereby engaged in unfair labor practices in violation of Section 8(b)
(7)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of theAct.
[Recommendations omitted from publication.]
The Cross Company and International Union , United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America, UAW-AFL-CIO, and its Local Union No. 155, Inter-
national Union, United Automobile , Aircraft and Agricultural
Implement Workers of America, UAW-AFL-CIO. Case No.
7-CA-2468. May 11, 1960
DECISION AND ORDER
On February 5, 1960, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the General Counsel,
the Respondent, and the Charging Union filed exceptions to the In-
termediate Report, and the Respondent and the Charging Union also
filed supporting briefs.
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 [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
case , and hereby adopts the findings, conclusions, and recommends
tions of the Trial Examiner, with the following additions.
X127 NLRB No. 88.
'692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We agree with the Trial Examiner that the Respondent violated
Section 8(a) (5) and (1) of the Act by refusing to bargain with the
Charging Union, the certified bargaining representative of the Re-
spondent's employees.'
We further find that the Respondent's refusal to bargain was the
basic cause of the strike of the Respondent's employees which com-
menced August 4, 1959, and which is still in progress, and that the
striking employees are unfair labor practice strikers.2
THE REMEDY
Having found that the Respondent's striking employees are unfair
labor practice strikers, and as the record does not establish that the
strikers have abandoned the strike or are unavailable for reemploy-
ment, we shall order that the Respondent, upon application, offer the
strikers reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges, dismissing, if necessary, any employees hired after August 4,
1959, the day the strike started, to replace the striking employees. We
shall also order that the Respondent make whole those strikers who
are entitled to reinstatement for any loss of pay they may suffer by
reason of the Respondent's refusal, if any, to reinstate them, upon
request, by payment to each of them of a sum of money equal to that
which he normally would have earned as wages during the period
beginning 5 days after the date on which he applies for reinstatement
and terminating on the date of the Respondent's offer of reinstate-
ment, such loss to be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289.3
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
,of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, The Cross Company,
Fraser, Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America, UAW-AFL-CIO, and its Local Union No. 155, Inter-
national Union, United Automobile, Aircraft and Agricultural Im-
plement Workers of America, UAW-AFL-CIO, as the exclusive
representative of all production and maintenance employees, includ-
ing truckdrivers, leaders, timekeepers, shipping and receiving em-
ployees, employed at the Respondent's plant in Fraser, Michigan,
1 Olson Rug Company, 120 NLRB 366.
2 Tom Thumb Stores , Inc., 123 NLRB 833.
3 Tom Thumb Stores, Inc ., supra; Morris Fishman & Sons , Inc, 122 NLRB 1436, 1439.
THE CROSS COMPANY 693
excluding office clerical employees, draftsmen, engineers, designers,
professional employees, expediters, servicemen, guards, and super-
visors as defined in the Act.
(b) In any like or related manner, interfering with, restraining,,
or coercing its employees in the exercise of the right to self-organiza-
tion, to form, join, or assist International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, UAW-
AFL-CIO, and its Local Union No. 155, International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, UAW-AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, and to refrain from
any or all of such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section 8(a) (3)
of the Act , as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
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 Automobile, Aircraft and Agricultural Implement Workers
of America, UAW-AFL-CIO, and its Local Union No. 155, Inter-
national Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, UAW-AFL-CIO, as the exclusive repre-
sentative of all employees in the aforesaid appropriate unit, and, if an
understanding is reached, embody such understanding in a signed
agreement.
(b) Upon application, offer to the Respondent's striking employees
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay, in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of backpay due, if
any, and the rights of employment under the terms of this Order.
(d) Post at plant at Fraser, Michigan, copies of the notice attached
hereto marked "Appendix."' Copies of said notice, to be furnished
by the Regional Director for the Seventh Region, shall, after being
duly signed by a duly authorized representative of The Cross Com-
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany be posted by Respondent Company immediately upon receipt
thereof, and maintained by it for 60 days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent Company to
insure that such notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees, that:
WE WILL NOT refuse to bargain collectively with International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-AFL-CIO, and its Local Union No.
155, International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, UAW-AFL-CIO, as
the exclusive bargaining representative of the employees in the
appropriate unit. The bargaining unit is:
All production and maintenance employees, including truck-
drivers, leaders, timekeepers, shipping and receiving employ-
ees, employed at our plant in Fraser, Michigan, excluding
office clerical employees, draftsmen, engineers, designers, pro-
fessional employees, expeditors, servicemen, guards, and
supervisors as defined by the Act.
WE WILL NOT interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to form, join, or
assist International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America, UAW-AFL-CIO,
and its Local Union No. 155, International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America, UAW-AFL--CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or to refrain from
any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8(a) (3) of the Act.
THE CROSS COMPANY 695
WE WILL, upon request, bargain collectively with the aforesaid
labor organization as the exclusive representative of the employ-
ees in the appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
WE WILL offer to our striking employees, upon their application,
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges,
dismissing, if necessary, any employees hired after August 4,
1959, to replace these employees, and we will make each employee
whole for any loss of pay suffered by him as a result of our failure
to reinstate him within 5 days after his application.
All our employees are free to become and remain, or refrain from
becoming or remaining, members of the above-named Union, or any
other labor organization , except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
THE CROSS 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly designated
Trial Examiner in Detroit , Michigan, on December 2, 1959, on complaint of the
General Counsel and answer of The Cross Company, herein called the Respondent.
At the onset of the hearing the Trial Examiner was advised by counsel for the
General Counsel and counsel for the Respondent , and the Charging Union, that
they had agreed that the entire record in this proceeding be stipulated. The Trial
Examiner approved their agreement in this regard . Thereafter step by step all
of the facts pertinent to the issues herein were entered by stipulation of the parties
upon the official transcript of the record herein and approved by the Trial Examiner.
The issues stipulated were whether the Respondent violated Section 8(a)(5)
and (1 ) of the Act. After the stipulations were completed the Trial Examiner
advised the parties of their right to present oral argument or to file briefs in support
of their respective positions . All waived oral argument . On or about December 28,
1959, the Trial Examiner received well-considered and comprehensive briefs from
the General Counsel and the Respondent . They have been carefully considered.
Upon the basis of the aforesaid stipulation , the briefs of the General Counsel
and the Respondent , and the entire record in the case , the Trial Examiner makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and the Board has previously found
in Cases Nos. 7-RD-272 and 7-RD-275 , pursuant to a stipulation for certification
upon consent election, that Respondent , in the course and conduct of its business
operations aforesaid , during the 12 -month period ending December 31, 1958, which
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period is representative of all times material hereto, purchased raw materials valued
in excess of $500,000 , which were received directly from points outside the State
of Michigan . During the same period above mentioned , the Respondent manu-
factured , sold, and shipped finished products , valued in excess of $500,000 , in inter-
state commerce from its plant in Michigan to points outside the State of Michigan.
In the circumstances found and described above the Trial Examiner likewise
finds that the Respondent at all times material herein has been and is now engaged
in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union , United Automobile , Aircraft and Agricultural Implement
Workers of America, UAW-AFL-C1O, and its Local Union No. 155 , International
Union , United Automobile , Aircraft and Agricultural Implement Workers of
America, UAW-AFL-CIO, herein jointly called the Union , are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The issues herein stem primarily from the facts found by the Board in its Decision
and Certification of Representatives in Cases Nos. 7-RD -272, 275, 123 NLRB 1503,
issued June 8, 1959 . Consequently the facts stipulated by the parties at the hearing
herein have for the most part been previously considered and disposed of by the
Board. In the circumstances the Trial Examiner sees no necessity of burdening
this report with a complete "rehash," so to speak, of all that transpired at the
regional level before the above R cases were ultimately considered and disposed of
by the Board. However, he does feel that a brief summation thereof would be
helpful to all concerned . Since the General Counsel in his brief has done so in a
most workmanlike manner, the Trial Examiner inserts below the following excerpts
therefrom which he deems sufficient for this purpose.
The Facts
The facts in this case are not in dispute.
Chronology
September 10, 1958:
Chris M. Youngjohn , agent and attorney for certain employees of the
Employer, filed a decertification petition , Case No. 7-RD-272, in respect to a
particular unit of the Respondent (G.C. 2).
October 3, 1958:
Youngjohn filed another decertification petition , Case No. 7-RD-275, identi-
cal in scope to Case No. 7-RD-272. On that date the Regional Director for
the Seventh Region issued an order Consolidating Cases Nos. 7-RD -272 and
7-RD-275, and advising the parties of a representation hearing to be held in
these cases on October 7, 1958 (G C. 3).
October 10, 1958:
A Stipulation for Certification Upon Consent Election was approved by the
Acting Regional Director of the 7th Region . The appropriate collective bar-
gaining unit (paragraph 6 of G.C. 1) and commerce jurisdiction were stipu-
lated in the election agreement . The parties to the agreement , the Respondent,
the Charging Union and Chris Youngjohn , agreed upon an election to be held
on November 12, 1958, at a certain time and place (G C. 4).
November 12, 1958:
An election was held . The tally showed 150 votes for the Union, 134
against, and 5 challenges . Challenges were not determinative of the outcome
(G.C. 5).
November 17, 1958:
Both the Decertification Petitioner and the Respondent filed Objections to
Election (G C. 6 and 7). The contentions in these objections , important to
the instant case, are, in summary , that on the day of the election , the Charging
Union distributed campaign literature containing falsehoods , and that the
timing of the distribution was so close to the actual conduct of the election
as to disallow refutation by the other parties of the contents of the leaflet.
March 16, 1959:
The Regional Director for the 7th Region issued a Report on Objections to
Election and Recommendation in Cases Nos. 7-RD-272 and 7-RD-275
(G.C. 8). The Regional Director concluded that the Respondent and Peti-
tioner's contentions noted in the preceding paragraph weie without merit.
In substance , the Regional Director found that the leaflet in question, even
THE CROSS COMPANY 697
assuming it contained a misrepresentation or exaggeration of the facts, did not
fall within the rule of Gummed Products Co., 112 NLRB at 1093 to 1094,
because there was no evidence to warrant the conclusion that the Union had
special knowledge of, or was in an authoritative position to know the true facts.
The contention of the close timing of the campaign literature was disposed by
the conclusion that ( a) sometime prior to election , both Respondent and
Petitioner had in individual leaflets, circulated among the employees, enun-
ciated their respective views relative to the seniority policies of Respondent;
(b) that through this, as well as through their employment at Respondent, the
employees were able to properly evaluate the Charging Union's campaign
propaganda; and (c) that in any event Board precedents are clear that none
of the parties to an election have the inalienable right to get in the last word in
respect to campaign propaganda (citing Comfort Slipper Corp., 112 NLRB 183).
April 2 and April 3, 1959:
Both the Decertification Petitioner and Respondent took exceptions to the
report of the Regional Director (G.C. 9 and 10) Both contended, (a) that
the false and untrue statements in the Charging Union's leaflet distributed on
the day of the election were of material interest to the electorate and therefore
did in fact influence the outcome of the election; (b) that the Respondent and
Petitioner were never afforded a real opportunity to reply to these false state-
ments; (c) that the misrepresentations were made recklessly by the Charging
Union without any basis or justification. The Respondent urged that the Board
review the recommendation of the Regional Director on the basis of Gummed
Products Company, 112 NLRB 1092, and Allis Chalmers Mfg. Co., 43 LRRM
2246 (C.A. 7). The Decertification Petitioner attached to his exceptions 29
affidavits from employees of the Respondent in which the affiants contend that
the Charging Union's leaflet did have an effect upon their choice. Also annexed
to the Petitioner's exceptions was an affidavit of one George Ferguson, in
which he purports that responsible representatives of the Charging Union had
special knowledge of and were in a position to know the untruth of the Charging
Union's declarations in the campaign literature.
June 4,1959:
The Board issued a Decision and Certification of Representatives in Cases
Nos. 7-RD-272 and 7-RD-275 (123 NLRB 1503). The Board certified
the Charging Union as the majority bargaining representative of certain em-
ployees of Respondent. After fully considering all aspects of the exceptions
filed (G.C. 9 and 10) the Board found the Respondent's and Decertification
Petitioner's contentions relative to the Charging Union's campaign leaflet to be
without substance. The Board concluded that only when there is a deliberate
misstatement it will set aside the election; this the Board decided was not the
case herein, as the Union had no special knowledge relative to the 1949 layoffs,
declaring further that the employees could in fact properly evaluate the declara-
tions contained in said leaflet. An added consideration noted by the Board was
that sometime prior to the election both objecting parties had circulated state-
ments regarding seniority and job security, thus affording the employees full
opportunity to discuss these subject matters in the free market place of opinion.
The Board reiterated that no one party to the election is entitled to have the
last opportunity to reply to campaign propaganda
June 10, 1959:
The Respondent filed a Petition for Reconsideration (G.C. 12) with the
Board. It reiterated the contentions noted in its exceptions, as well as asking
the Board to specifically notice the Ferguson affidavit as evidence of the Charg-
ing Union's cognizance of the untruth of its declarations It vigorously urged
the Board to reconsider its decision on the basis of Allis Chalmers (Supra).
June 22, 1959:
The Board issued an Order denying the petition for reconsideration (G C.
13).1 In footnote (2), the Board specifically distinguished its decision from
that of Allis Chalmers.
On June 24, 1959, Gordon Buchanan, an International representative of the
Union, sent the following telegram to Vernon Riddle, plant manager, for the
Respondent:
Petition for reconsideration has been denied and Local 155 UAW has definitely
been certified as the bargaining agent. We request a meeting with you to start
bargaining immediately on the new agreement.
1 General Counsel's Exhibit No. 13
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the record neither Riddle nor any other representative of the Re-
spondent replied to the above telegram.
As indicated above the Board denied the Respondent's petition for reconsidera-
tion on June 22, 1959. Shortly thereafter on June 24, 1959, Chris M. Youngjohn,
attorney and agent for the group of employees, referred to above filed another
decertification petition, Case No. 7-RD-304. The Regional Director dismissed the
petition on July 7, 1959. Thereafter Youngjohn filed a request for review with the
Board on July 13, 1959. On August 7, 1959, the Board sustained the Regional Di-
rector's action in this regard.
In the interim the members of the Cross Unit of Local 155 held a meeting on
June 29, 1959, for the purpose of discussing its unsuccessful attempts to obtain a
meeting with representatives of the Respondent. The upshot of the meeting was
that the Union voted to set a deadline for a strike vote on July 8, but that this vote
would be delayed if the Respondent met with representatives of the Local by July 7,
1959. On the next day, President Leach of Local 155 also sent a telegram to the
Respondent and requested that it meet with the Union for purposes of bargaining
collectively. He also advised the Respondent that the employees in the appropriate
unit would consider strike action on July 8, 1959, if the Respondent continued to
refuse to bargain.
On June 30, 1959, the Union received the following telegram from Vernon E.
Riddle, the Respondent's general superintendent:
Since the recent decision by the National Labor Relations Board concerning the
serious question as to whether a majority of our employees wish to be repre-
sented by Local #155, UAW-CIO, we have been notified that another election
petition has been filed by an attorney stating he represents over 50 percent of
the employees in the bargaining unit. Unless this representation question is
resolved we are unable to meet with you to bargain on a new agreement.
The petition referred to in the above telegram was the decertification petition filed
by Attorney Youngjohn on June 24, 1959, Case No. 7-RD-304, which was as noted
above dismissed by the Regional Director on July 7, 1959.
As indicated above the Union at its meeting on June 29, 1959, voted to hold a
strike vote meeting on July 8, 1959, if the Respondent failed to meet with it for
bargaining purposes by July 7, 1959. On the date set, July 8, 1959, the Union met
for this stated purpose and a majority of those present voted for strike action, at a
date set by a committee. However, the date thereof was conditioned upon the Re-
spondent's future conduct as regards bargaining relations with the Union.
We now come to what the Trial Examiner considers the crux of the case. By this
statement he has reference to the motive behind the Respondent's admitted refusal to
bargain with the Union after it was certified by the Board, and the steps it took in
its efforts to seek a judicial review of the Board's findings and conclusions in the
original representation Cases Nos. 7-RD-272 and 7-RD-275. The Trial Examiner
has reference to the following telegram which was sent Gordon Buchanan, Inter-
national representative of the Union, on July 13, 1959, by Vernon E. Riddle, general
superintendent of the Respondent .2
We have a good faith doubt that our employees wish to be represented by
Local 155.
This representation question can be settled by your-
1. Agreeing to a new election not clouded by misrepresentations that were
admittedly made by the Union during the last such election or
2. Awaiting the determination of the pending legal proceedings or
3. Filing an unfair labor practice charge with the NLRB and awaiting its
outcome
The Company will cooperate in expediting any of the above procedures to
obtain an early determination of the representation question.
THE CROSS COMPANY,
VERNON E. RIDDLE,
General Superintendent.
[Emphasis supplied.]
Shortly after the Union received the above telegram, Gordon Buchanan, its
international representative, wired the Respondent that the ". . . UAW cannot
accept any of the three proposals," that were set forth in the above telegram.
2 See General Counsel's Exhibit No. 20.
THE CROSS COMPANY 699
The "legal proceedings" referred to in the above telegram refer to a petition for a
writ of mandamus, which'the Respondent had filed with the U.S. Court of Appeals
for the Sixth Circuit at Cincinnati, Ohio, of which more anon.
On August 3, 1959, the Union filed the charge upon which the complaint herein
was predicated. Thereafter on August 17, 1959, the Sixth Circuit issued a temporary
restraining order against the Board. On October 5, 1959, argument on the issue
was held before the court in Cincinnati, Ohio. On October 9, 1959, the court
denied the Respondent's application for a mandamus and dissolved the restraining
order issued on August 17, 1959 (45 LRRM 2146). The Trial Examiner is of the
opinion that it would be helpful to all concerned to set forth herein the court's
opinion in the matter. Consequently it follows below:
Before MARTIN, MILLER, and CECIL, Circuit Judges.
Full Text of Opinion
PER CURIAM:-In a representative election held under the Labor Manage-
ment Relations Act of 1947, Local 155, International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO
was certified by the National Labor Relations Board as the bargaining repre-
sentative of the employees of The Cross Company, petitioner herein. Subse-
quently, upon the application of some 30% of the employees of petitioner,
a decertification election was held on November 12, 1958.
On the morning of the election, Local 155 distributed to employees of
petitioner certain campaign literature and propaganda which contained false
statements about the layoff and recall of petitioner's employees during 1949,
and other related matters. The Board announced the result of the election as
150 votes for the Union to 134 votes against the Union. On June 4, 1959, the
Board entered an order which found that the campaign literature of the Union
contained the false statements above referred to, but approved the recommenda-
tion of the Regional Director, who had conducted an investigation of the
election, and declared the election valid and certified Local 155 as the bargain-
ing representative of petitioner 's employees.
On the basis of affidavits filed by 29 of its employees , petitioner contends
that said 29 employees were caused to vote for the Union instead of against the
Union by reason of the false campaign literature , and that it is the duty of
the Board to set aside the election. The Board has refused to do so, taking
the position that in its judgment, under all the circumstances of the case, the
false statements were not such as to require the election results to be invalidated.
Alleging that it has no other adequate remedy, petitioner has filed the present
application for a mandamus against the Board setting out the foregoing facts
and asking that the Board be directed to set aside the election of November 12,
1958, and to order a new election. The question has been argued orally by
counsel for the respective parties, who have also filed briefs.
The Court is of the opinion that the application for a mandamus be denied
and that the restraining order heretofore issued against the Board on August
17, 1959, effective during the pendency of these proceedings, be dissolved.
Roche v. Evaporated Milk Association, 319 U.S. 21; Ex parte Fahey, 332 U.S.
258; Massey-Harris-Ferguson, Ltd. v. Boyde, 242 F. 2d 800, 803, C.A. 6th,
cert. denied, 355 U.S. 806; Myers v. Bethlehem Shipping Corp., 303 U.S. 41,
1-A LRRM 575; American Federation of Labor v. National Labor Relations
Board, 308 U.S. 401, 5 LRRM 670; N.L.R.B. v. A. J. Tower Co., 329 U.S.
324, 330, 19 LRRM 2128. [Emphasis supplied.]
The Respondent 's position is well stated in its answer . As the Trial Examiner
sees it the answer is by way of "confession and avoidance," with the ultimate goal
of securing judicial review of the Board 's decision and order in the combined
representation cases.
The Respondent sought judicial review of the Board 's ruling upholding said
election . Such review could be obtained by appeal in proceedings in the form
of charges by the Union against respondent for refusal to bargain, the respond-
ent has repeatedly stated its desire to review said order in this manner. How-
ever, the Union had failed to take such action from June 4, to the date of the
charge filed herein on August 3, 1959. That by reason of the delay in instituting
such proceedings by the Union, respondent, in good faith, instituted proceed-
ings by way of mandamus , in the hope of obtaining final judicial determination
of the question . Attached hereto and marked Exhibit I is a true copy of the
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petition for Writ of Mandamus , together with exhibits in support thereof, filed
with the United States Circuit Court of Appeals for the Sixth Circuit on the
7th day of July, 1959.
The Respondent reiterates its desire for judicial review of the Board 's decision
and order in the representation cases referred to above in its brief to which particular
reference is hereby made .3
As indicated above the Union filed its charge against the Respondent on August 3,
1959. On the next day, August 4, 1959 , certain of the employees in the bargaining
unit went out on strike at the Respondent 's plant . Even so the Union , by a telegram
from President Leach, again requested that the Respondent meet with its representa-
tives for the purposes of collective bargaining . The Respondent never replied to his
telegram.
The Conclusions
As indicated above the Respondent admits that it has refused to bargain with the
Union . In support of its position its counsel filed with the Trial Examiner an
excellent brief. The following excerpt therefrom follows below, which in the Trial
Examiner 's considered opinion sets forth in clear and concise language the Respond-
ent's attitude and the motivating factors upon which its entire course of conduct
was predicated.
The admitted refusal to bargain by The Cross Company has been entirely in
good faith for the sole purpose of obtaining judicial review of what it believes to
be an invalid and improper certification. Under applicable court decision, e.g.
AFL vs. NLRB, 308 U.S. 401; 84 L. Ed. 347, and The Cross Company vs.
Leedom, et al., 45 LRRM 2146 (C.A. 6, 1959), the Board's certification of
Local 155 could not be judicially reviewed except as an employer defense to
enforcement proceedings following an unfair labor practice finding The Com-
pany attempted to obtain judicial review of the certification by filing a Petition
for a Writ of Mandamus against the members of the Board with the Court of
Appeals for the Sixth Circuit. The Board resolutely resisted this procedure
with the result that the Company was, in effect, forced to refuse to bargain with
the Union in order to have a final hearing as to the validity of the November
12, 1958, election. [Emphasis supplied.]
Since the National Labor Relations Act, applicable court decisions and Board
policy deny an employer direct judicial review of representation proceedings,
such review can be obtained only by a deliberate violation of the Act. Under such
circumstances, and where the Act has been violated in good faith, the violation,
if any, is merely a technical violation engaged in solely for the purpose of obtain-
ing a judicial review of a representation proceeding . [ Emphasis supplied.]
On the other hand the Trial Examiner not only must consider the reasoning of
the Board in its disposal of the very issues upon which the Respondent predicates its
defense but is in fact bound thereby under prior decisions of the Board and courts in
cases involving similar situations too numerous to cite herein ad infinitum in support
of his reasoning in this regard . Suffice it to say that the Trial Examiner after careful
consideration of the voluminous documentary exhibits that were offered and received
in evidence at the hearing herein by way of stipulation, and the briefs of the parties,
that he too subscribes to the reasoning of the Board in the representation cases.4
In the circumstances discussed, described, and found above the Trial Examiner
concludes that the Respondent by its admitted refusal to bargain with the Union as
the certified bargaining representative of its employees in the appropriate unit set
forth below on and after November 12, 1958, has violated and is violating Section
8(a)(5) of the Act, and that by thus interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of, the Act, the
Respondent also violated Section 8 ( a) (1) thereof.
The Board has found, the parties have stipulated, and the Trial Examiner finds
that the appropriate unit herein is as follows:
All production and maintenance employees , including truckdrivers, leaders,
timekeepers , shipping and receiving employees, employed at the Respondent's
plant in Fraser, Michigan, excluding office clerical employees, draftsmen, engi-
neers, designers, professional employees , expeditors , servicemen , guards, and
supervisors as defined by the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act
3 The Trial Examiner has reference to pages :i and 6 of the Respondent's brief
' Cases Nos 7-RD-272 and 7-RD-27.5
0
AMERICAN VITRIFIED PRODUCTS COMPANY 701
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above, occurring in connec-
tion with the operations of the Respondent described in section I, above, have a close,
intimate, and substantial relation to trade , traffic, and commerce among the several
States , and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) and (5) of the Act , it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Thus, having found that the Respondent interfered with , restrained , and coerced
its employees by the conduct enumerated in the section entitled The Conclusions,
the Trial Examiner will recommend that the Respondent cease and desist from this
and any other like or related conduct.
Having found that the Respondent refused to bargain in violation of the Act, it will
be recommended that, upon request , the Respondent bargain collectively with the
Union and, if an understanding is reached , that such understanding be embodied in
a signed agreement.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union , United Automobile, Aircraft and Agricultural Implement
Workers of America , UAW-AFL-CIO, and its Local Union No. 155, International
Union, United Automobile, Aircraft and Agricultural Implement Workers of America,
UAW-AFL-CIO, is a labor organization within the meaning of the Act.
2. By engaging in the conduct set forth in the section entitled "The Conclusions,"
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
3. The Union on November 12, 1958 , was and at all material times thereafter has
been the exclusive bargaining representative of all the employees in the unit found
above to be appropriate in the section entitled "The Conclusions," for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive representative
of its employees in an appropriate unit beginning November 12, 1958 , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
American Vitrified Products Company and Local 967, United
Brick and Clay Workers of America , AFL-CIO. Case No.
14-CA-2091. May 11, 1960
DECISION AND ORDER
On February 10, 1960, Trial Examiner Vincent M. Rotolo issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
.labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.
127 NLRB No. 92.