The Deutsch Co.

National Labor Relations Board - Board Decisions

Sep 4, 1957

118 N.L.R.B. 1294 (N.L.R.B. 1957)

1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. During, the course- of the hearing, the hearing officer direetee
that testimony be taken with respect to the alleged supervisory status
of Anna Matthews, a unit chief, who was discharged on January. 6,,
1956. Charges filed January 9, 1956, with respect to her- discharge
are still pending in Case No. 2-CA-4609. The Employer contends,
and the Petitioner denies, that she was a supervisor at the time of
her discharge. There is a conflict in the testimony thereon in the
record. If the charges are pending when the election directed herein
is conducted, she shall be entitled to vote subject to challenge on the
ground that she is a supervisor. In the event that her challenged
ballot be determinative of the outcome of the election, we shall then
resolve the challenge.1e
[Text of Direction of Election omitted from publication.]
to, direct them or to adjust their grievances , or effectively to recommend such action.
Although a senior operator IV may act as a substitute for the unit chief during a
temporary absence, the record shows that such situations are of a sporadic and extremely
limited nature . We find that the infrequent and sporadic substitution for a unit chief
insufficient to vest the senior operator IV's with supervisory status and shall include
them as employees within the unit . See United States . Gypsum Company, 116 NLRB
1771, 1773.
io See Tube Distributors Co., Inc. , 112 NLRB 296, 299.
The Deutsch Company and United Industrial Workers Local 976,
AIW-AFL-CIO. Case No. f1-CA-0581. September 4, 1957
DECISION AND ORDER
On February 19,1957, Trial Examiner Martin S. Bennett 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 supporting brief.
The General Counsel filed exceptions to the remedy only.'
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 Leedom and Members Murdock and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
.rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
'As the record, exceptions, and brief adequately present the issues and positions of
the parties , the Respondent 's request for oral argument to denied.
118 NLRB No. 171.
THE DEUTSCH COMPANY 1295
case, and hereby adopts the findings, conclusions , and recommenda
-tions of the Trial Examiner, with the modifications noted be]ow.2
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders The Deutsch' Company, Los Angeles
and Huntington Park, California, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Industrial Work-
ers Local 976, AIW-AFL-CIO, as the exclusive certified representa-
tive of all production and maintenance employees at its plants at
7000 S. Avalon Boulevard, Los Angeles, California, and 6345 Regent
Street, Huntington Park, California, including truckdrivers, yard-
men, shipping and receiving employees, inspection employees, ware-
house employees, parts movers, production control employees, the
tool crib attendant, shop clerical employees, leadmen and foreman-
leadmen, but excluding professional employees, draftsmen, engineers,
technical employees, office clerical employees, watchmen, guards, and
supervisors as. defined in the Act, concerning rates of pay, wages,
hours of employment, and other conditions of employment.
(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 labor organizations, to join or assist United Industrial
Workers Local 976, AIW-AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing,
or to engage in other 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 organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Industrial
Workers Local 976, AIW-AFL-CIO, as the exclusive representative
of all employees in the appropriate unit described above, concerning
rates of pay, wages, hours of employment, and other conditions of
2 In his conclusion , the Trial Examiner stated that the Union 's loss of the private elec-
tion on November 16, 1956, resulted inevitably from the Respondent 's refusal to bargain.
While this might be true , it is immaterial that the Union lost the election as it was a
private election conducted in only 1 of 2 plants which the Board had previously found
constituted a single appropriate unit and in which the Union was certified.
We also amend the notice which the trial Examiner recommended to be posted to
conform with the provisions of our Order hereinafter directed.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment , and. if an understanding is reached , embody such un-
derstanding in a signed agreement.
(b) Post at its plants in Los Angeles and Huntington Park, Cali-
fornia, copies of the notice attached hereto marked "Appendix." 3
Copies of . said notice , to be furnished by the Regional Director for
the Twenty -first Region, shall , after being duly signed by the Re-
spondent 's representative , be posted by the Respondent immediately
upon receipt thereof and maintained by it for a period of sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered , defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty-first Region in
writing, Within ten (10) days from the date of.this Order, as to,\yhat
steps the Respondent has taken to comply herewith.
8In 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."
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, upon request, bargain collectively with United Indus-
trial Workers Local 976, AIW-AFL-CIO, as the exclusive rep-
resentative of all our employees in the certified bargaining unit
described below with respect to wages, rates of pay, hours of
employment, and other conditions of employment and, if any
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All production and maintenance employees at our plants at
7000 S. Avalon Boulevard, Los Angeles, California, and 6345
Regent Street, Huntington Park, California, including truck-
drivers, yardmen , shipping and receiving employees , inspec-
tion employees , warehouse employees, parts movers , production
control employees , the tool crib attendant , shop clerical em-
ployees, leadmen and foreman-leadmen , but excluding pro-
fessional employees , draftsmen , engineers , technical employees,
office clerical employees, watchmen, guards, and supervisors as
defined in the Act.
WE WILL NOT refuse to bargain collectively with United Indus-
trial Workers Local 976, AIW-AFL-CIO, as the exclusive certi-
THE DEUTSCH COMPANY 1297
fled representative of all our employees in the above - described
unit, concerning rates of pay , wages , hours of employment, and
other conditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain , or coerce our employees in the exercise of the right to
self-organization , to form labor organizations , to join or assist
United Industrial Workers Local 976, AIW-AFL-CIO, or any
other labor organization , to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment , as authorized in Section 8 (a) (3) of the Act.
THE DEUTSCI- 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 is brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat. 136, pursuant to a complaint issued by the General Counsel of the
National Labor Relations Board against The Deutsch Company. The complaint,
dated December 5, 1956, alleged that Respondent had engaged in unfair labor
practices within the meaning of Section 8 (a) (5) and (1) of the Act by refusing
to bargain collectively with United Industrial Workers Local 976, AIW-AFL-CIO,
herein called the Union, as the representative of its employees in an appropriate
unit. Copies of the complaint, the charge upon which it was based, and notice of
hearing thereon were duly served upon Respondent. The duly filed answer of
Respondent denied the commission of any unfair labor practices and raised a number
of affirmative defenses which are treated hereinafter.
Pursuant to notice, a hearing was held at Los Angeles, California, on January 14
and 15, 1957, before the duly designated Trial Examiner. The parties were repre-
sented by counsel who were afforded full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce relevant evidence. At the close of the
hearing, the parties were afforded an opportunity to argue orally and to file briefs.
Oral argument was presented by the General Counsel and Respondent; briefs have
been received from all parties together with proposed findings and conclusions from
Respondent.'
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Deutsch Company is a California corporation having its principal place of
business and operating two plants in Los Angeles and Huntington Park, California,
1 The proposed findings are not numbered and do not permit of specific treatment ; they
are therefore rejected . Proposed conclusions 1 and 4 are accepted and proposals 5 and 6
are rejected . Proposals 2 and 3 are interpreted in the light of proposal 5 and are also
rejected..
450553-58-vol. 118-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where it is engaged in the manufacture of aircraft parts and components and screw
machine products. It annually ships products valued in excess of $100,000 directly
to points outside the State of California. I find that Respondent is engaged in com-
merce within the meaning of the Act and that it would effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Industrial Workers Local 976, AIW-AFL-CIO, is a labor organization
admitting to membership the employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issue
The Union, under its original name, was certified by the Board on August 20,
1956, as the representative of the employees of Respondent in a single two-plant
unit found by the Board to be appropriate. Soon thereafter, according to the
General Counsel, Respondent refused to bargain with the Union for the employees
of both plants; these are referred to herein as the Regent and Avalon plants, and,
so far as the record indicates, Respondent operates no others. Respondent denies
that it has failed to bargain in good faith and presses a number of defenses including
(1) separate plant units are appropriate rather than the single two-plant unit
found by the Board to be appropriate and further, that in so finding the Board
abused its discretion; (2) the election proceedings conducted by the Board, par-
ticularly at the Avalon plant, were tainted with irregularity; (3) a private election
subsequently held at the Avalon plant by Respondent and the Union disclosed that
the Union was not the representative of the employees of that plant; and (4) by the
agreement to hold an election at the Avalon plant and the ensuing loss of the elec-
tion the Union has waived any right to represent these employees under the Board's
certification. Respondent does not challenge the status of the Union as the majority
representative of the employees at the Regent plant if confined to a separate unit of
the employees of that plant.
The response of the General Counsel is basically that under a current outstanding
certification there is a duty on the part of Respondent to bargain with the Union
for the employees in the certified unit and that, in any event, any loss of majority
at the Avalon plant stems from the unfair labor practices of Respondent which
Respondent may not rely upon as a defense.
B. The refusal to bargain
1. The representation proceeding
The Union, then named United Industrial Workers Local 976, UAW-AFL-CIO,2
filed a representation petition in The Deutsch Company, Case 21-RC-4365, early in
1956. Hearings were held thereon on various dates in May, and, on July 9, 1956,
the Board duly issued its Decision and Direction of Election wherein it found that
all production and maintenance employees of Respondent at its plants on Avalon
Boulevard in Los Angeles and on Regent Street in Huntington Park, both in Los
Angeles County, constituted a single unit appropriate for the purposes of collective
bargaining within the meaning of the Act. Included in the unit were truckdrivers,
yardmen, shipping and receiving employees, inspection employees, warehouse em-
ployees, parts movers, production control employees, the tool crib attendant, shop
clerical employees, leadmen and foreman-leadmen; the parties agreed that leadmen
and foreman-leadmen were not supervisory employees within the meaning of the
Act. Excluded were professionals, draftsmen, engineers, technical employees, office
clericals, watchmen, guards, and supervisors. It is clear that this is the common
production and maintenance unit regularly found to be appropriate by the Board.
The Board further noted as follows:
The Employer contends that single plant units are appropriate. It moved
to dismiss the petition on that ground. The Petitioner seeks a unit covering both
plants. The two Intervenors did not take a firm position on unit. The Regent
Street plant was acquired about 1954 apparently because additional space was
5As will appear , there was subsequently a change in its name to United Industrial
Workers Local 976 , AIW-AFL-CIO, also described in the pleadings as United Industrial
Workers Local 976 , International Union Allied Industrial Workers of America, AFL-CIO.
The change of name , as such, was not challenged at any time by Respondent and the
record does not supply the reasons therefor.
THE DEUTSCH COMPANY 1299
needed for the Employer's operation. It is located about 21/2 miles from the
Avalon Boulevard plant. More than 80 percent of the components used in its
assembly work, largely in the field of electronics, come from the Avalon plant,
which is essentially a large machine shop manufacturing metal components. The
two plants have a "composite" bookkeeping set-up maintained at Avalon, but
the Regent Street plant has its own sales office and does its own hiring. Em-
ployees are not ordinarily interchanged between the plants but a uniform
personnel policy is determined by the board of directors and the employees do
have similar skills. Although it is clear that a separate unit at each plant could
be appropriate for collective bargaining, we find, because of the centralized
administration and functional integration of the two plants, the similar skills
of the employees, and the uniform personnel policy, that a single unit of the
production and maintenance employees of both plants, as sought by the Peti-
tioner, is appropriate here. See North Memphis Lumber Company, 81 NLRB
745; Pine Hall Brick and Pipe Company, 93 NLRB 362; Coburn d/b/a Coburn
Catering Corporation, et al., 100 NLRB 1133. See also, Riegel Paper Corpora-
tion, 96 NLRB 779. The motion to dismiss is denied.
An election was directed with the employees given a choice between the Petitioner,
an intervening labor organization, namely District Lodge 94, International Associa-
tion of Machinists, AFL-CIO, or neither. Shortly thereafter, on an undisclosed
date in advance thereof, the election was set up by the Regional Office for August 8,
1956.
On July 24, 1956, Respondent filed a document with the Board addressed to
the representation proceeding, wherein it asked that the Board (1) rehear and
reconsider its Decision and Direction of Election; (2) issue an order suspending the
election, pending determination by the Board of the petition for rehearing and re-
consideration; (3) issue an order authorizing Respondent to offer and submit new
and additional evidence; (4) vacate its previous Decision and Direction of Election;
and (5) issue an order dismissing the representation petition.
In this motion, Respondent argued in some detail, inter alia, that the finding of
the Board that a single two-plant unit was appropriate was contrary to prior de-
cisions, i. e., case law in other cases not involving Respondent; that certain testimony
bearing on the question of unit was not fully developed by Respondent because the
industrial relations representatives then representing Respondent assumed that the
Board would adhere to its past policies and find separate plant units to be appropriate
in the representation proceeding; and that as a result then available testimony of
a more detailed nature bearing on the unit question had not been developed in the
representation proceeding. The motion also listed alleged differences in production
and working conditions between the two plants and endeavored to distinguish the
case from those cases cited by the Board in its decision.
On August 2, the Board issued a telegraphic order denying Respondent's motion
in toto "for the reason that it presents no issues which were not previously con-
sidered by the Board." Copies of this order were sent to everyone involved, but
Respondent did not receive a copy of this telegraphic order until August 10. On
that date, the Board sent Respondent a wire identical with that previously sent to
and received by the other parties on August 2, save that it was prefaced by the
introductory statement that its transmission was late because of "Delay due to GSA
(apparently General Services Administration and its teletype system) error not
National Labor Relations Board."
It is to be noted, however, that Respondent was admittedly notified on August 3
by its counsel that a local representative of the Board in Los Angeles had advised
him the Regional Office intended to proceed with the election as scheduled on
August 8, 1956. This appears in a speech made by Philip Holzman, general manager
of the Avalon plant and also secretary of the company, to the Avalon employees in
November prior to a private election conducted on November 16. Presumably this
advice from the Region was pursuant to the language of the Direction of Election
which directed the Regional Director to conduct the election not later than 30 days
after July 9. Holzman also admitted herein that he had received formal notification
of the Board election in advance thereof.
The election was held on August 8 as scheduled. It was not held in the plant,
at least not in the Avalon plant. It is claimed herein and, not denied that Respondent
refused to permit its premises to be utilized for this purpose; such was not the case
in the private election later held on November 16. Indeed, Respondent expressly
contends herein that the election was not held on Avalon premises , that Respondent
had not had a final determination of its petition for reconsideration, that there was
no valid election, and that there was an attempt to conduct a "kangaroo" election.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears that of necessity voting booths were set up by the Board election officials
on the sidewalk outside the Avalon plant.
The tally of ballots mailed to the parties later that day discloses that of 460
eligible voters at both plants 207 voted for the petitioner, 1 for the intervenor, and
20 against either organization. Two other ballots were challenged and this amounted
to a total of 230 ballots cast. It may be noted that no difficulty in conducting the
election was experienced at the Regent plant, which is the smaller of the two.
Thereafter, on August 20, 1956, the Regional Director of the Board duly certified
Local 976, UAW, as the representative of the employees of Respondent in the indi-
cated single two-plant unit. Respondent did not file objections of any nature to
the conduct of the election within the 5-day period after the tally of ballots had
been furnished to it, or for that matter at any time.
Respondent does not dispute that it was timely served with the Decision and
Direction of Election of July 9 which specified that the election would be conducted
pursuant to Sections 102.61 and 102.62 of the Rules and Regulations of the Board.
The latter section provides that "objections to the conduct of the election or conduct
affecting the results of the election" may be filed within 5 days of the time the
parties have been furnished with the tally of ballots. It further provides that if no
objections are duly filed, the Regional Director shall certify the winning repre-
sentative or the results of the election as the case may be.
On October 18, 1956, Local 976, UAW, filed a motion with 'the Board to amend
its certificate by changing UAW to AIW. No objections were filed and the motion
was granted by the Board on October 29. There were no subsequent objections to
this decision by the Board and Respondent has not challenged this action of the
Board herein except to attack the original certification for other reasons, treated
below, which it is alleged also taint the amended certification. The matter of the
change of name was not raised, so far as the record indicates, in the meetings be-
tween the Union and Respondent during the period between September and Decem-
ber 1956, which are set forth below. No contention has been made that this is a
different labor organization. Hence, the issue of the change of name, as affecting
the validity of the certification, per se, is not deemed to be before me and it is found
that, as alleged in the complaint, this was merely a change of name which did not
affect the right of the successor union to assume the status of certified bargaining
agent. See Carpinteria Lemon Association et al. v. N. L. R. B., 240 F. 2d 554
(C. A. 9) and cases cited therein.
2. Attempted negotiations
Initially it may be noted that'there was considerable telephonic communication
between the parties during this period, all of which need not be detailed herein.
Local 976, UAW, was certified on August 20, 1956, and, on September 14, its
secretary-treasurer, Anthony Doria, wrote to Respondent. He enclosed a lengthy
contract proposal which was a form contract with dates and names of parties left
blank. In the letter, Doria referred to the enclosure and asked to enter into nego-
tiations with respect to the proposed contract at the earliest possible date; Respond-
ent was asked to select a mutually agreeable date. The letter also contained a request
for certain information to assist the Union in bargaining with Respondent. This
included (1) job titles of all jobs in the bargaining unit certified by the Board;
(2) job descriptions; (3) rates of pay for each job title; (4) job evaluation plan, if
any, and assigned ratings; and (5) details of existing insurance, profit sharing,
pension, and vacation programs, if any. The letter pointed out: "Although we
have not set forth the inclusions and exclusions from the bargaining unit in the
proposed agreement it is intended that the unit as set forth by the National Labor
Relations Board will be set forth in the final draft of the agreement."
On September 24, Respondent wired the Union that all meetings of every kind
should be taken up with. Respondent's designated industrial relations representative, -
the firm of H. DeVoe Rea & Associates. A meeting was then arranged between the
Rea firm and the Union for September 26. Among those present on that occasion was
Doria, H. DeVoe Rea, and Thomas Aiken, a member of the Rea firm, but only
Aiken and Doria testified concerning it. According to Doria, H. DeVoe Rea asked
him to list those topics which the Union was presenting for inclusion in a contract.
Doria proceeded to write out a list of 8, including union shop; checkoff of union dues;
separate seniority lists for the 2 plants; company-paid insurance; a 12-cent wage
increase; inequity adjustments on wage rates; 2 additional paid holidays; vacations;
and retention of existing favorable conditions. Doria also wrote out a brief state-
ment that the parties were entering negotiations in order to reach an agreement on
all disputed issues. In a reference to short strikes which had recently commenced
THE DEUTSCH COMPANY 1301
at both plants, Doria wrote that there would be no further work stoppages so long
as the bargaining discussions continued, but that if agreement were not reached
the Union could resort to other methods. As will appear, agreement was not
reached and these brief work stoppages did continue at both plants.
According to Aiken, and I so find, Doria protested at this September 26 meeting
that he did not understand the delay in negotiating for both plants, and suggested
that Respondent "follow the Board's certification, the unit description therein, and
negotiate with us on that basis." Aiken further testified that Rea told Doria it was
the position of Respondent that the Board election was invalid, that the election
did not reflect the desires of the employees, and that as a result the Union was not
the properly and duly certified bargaining representative. Aiken claimed, however,
that at this meeting Respondent was still willing to negotiate concerning both plants
and that the issue of separate treament of the Avalon plant, which in any event
did arise soon thereafter, did not develop until a later date. I find that on this date,
September 26, Respondent challenged the right of the Union to bargain for its
employees under the Board certificate and, as Dona testified, the meeting ended
with Rea promising to advise Doria whether Respondent would bargain for the
two plants.
Some days later, probably around October 1, Aiken informed Doria, as the latter
testified, that his firm had no authority to bargain for a single two-plant unit, i. e.,
the unit certified by the Board, because Respondent wished to challenge it. Both
Aiken and other members of the Rea firm consistently took this position thereafter.
Indeed, Aiken admitted that both he and DeVoe Rea consistently adhered to the
position during this entire period, commencing soon after the September 26 meeting,
that in view of Respondent's doubt of a union majority at the Avalon plant, the Union
would not be recognized as bargaining representative of those employees.
On October 1, Doria again wrote to Respondent directly and protested certain
alleged acts of discrimination against employees; these were not !alleged, litigated,
or substantiated herein. He also stated that the Union was the certified bargaining
representative in both plants and that it wished to be consulted on any changes.
in working conditions which were properly a matter for collective bargaining. A
meeting was requested for the purpose of taking up, inter alia, any unilateral acts.
by Respondent on topics subject to collective bargaining. The letter ended with a
renewal of the request that Respondent enter into negotiations on the contract pre-
viously submitted by the Union and that the requested information be furnished.
This letter was not answered by Respondent, nor was the requested information.
forthcoming. It may also be noted that at no time has Respondent, although attack-
ing the union-contract proposal as too broad and all-inclusive, submitted a counter-
proposal of its own.
On October 2 the Union filed a charge of unfair labor practices with the Regional
Office, claiming that Respondent had failed to bargain collectively with the Union.
and also alleging certain acts of discrimination which were subsequently dropped.
In mid-October, as Aiken testified herein, he notified Doria by telephone that
although Respondent was willing to continue negotiations on the Regent plant,
Respondent would not negotiate on the Avalon plant. He also informed Doria
that Respondent wanted to test the certification in the courts and that there was.
no object in further negotiations unless the Union agreed to a new election at
Avalon. It is also true that in mid-October Aiken informed Doria that he had no
authority to negotiate a contract for both.plants. Doria uncontrovertedly testified
that DeVoe Rea took a similar position.
Thomas Aiken of the Rea concern wrote to the Regional Office on November 1
relative to the unfair labor practice charge previously filed, and inter alia formally
took this position.
(a) The Company denies that the Union was and/or is valid and duly
certified by the Board as the collective bargaining representative of its em-
ployees and asserts that the Company's admitted failure and refusal to col-
lectively bargain with said Union was, and is, due to and justified and excused
by the following:
(1) Said lack of a valid and due certification of said Union as such
collective bargaining representative (the order of the Board purporting to
effect such certification being made upon the basis of an election which
was and is void and unsupported both legally and factually).
(2) The failure and refusal of the Board to grant the Company's petition
for a rehearing and for leave to offer and submit new and additional
evidence to said Board.
(3) The failure and refusal of the Board to make an order vacating its
previous decision with respect to multiplant units for collective bargaining.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) The failure and refusal of the Board to make an order dismissing
the Union's petition for an election based upon a multiplant unit.
(5) The failure of the Board, as acknowledged in its telegram of
August 10, 1956, to inform the Company and/or its legal counsel and/or
its labor relations counsel of the denial by said Board of the Company's
petition relative to items (2) to (4), both inclusive, of this paragraph (a).
(6) The holding by the Board of an election on the street under cir-
cumstances (brought about by the above-enumerated actions and failures
to act on the part of the Board) which prevented a full and free expression
of the majority of the Company's employees (only approximately 40 percent
of said eligible employees actually having voted at said purported election).
Several incidents of interest herein took place at this time. Late in October,
according to Aiken, he received a telephone call from Doria who proposed that a
card check be conducted among Avalon employees so as to demonstrate to Re-
spondent that the Union was their majority representative. Aiken agreed to transmit
this proposal to Respondent, apparently to Secretary Holzman, but stated that he
preferred a secret election because card checks were subject to pressures. Aiken
did take the matter up with Holzman, who rejected the card check proposal and
Aiken so notified Doria.
According to Doria, he proposed to H. DeVoe Rea around October 22 or 23 that
a contract be negotiated in 2 sections, 1 for each plant; this proposal, in effect, was
rejected because both Rea and Aiken adhered to their previously stated position of
challenging the union majority status at Avalon and refusing to negotiate for
that plant.
On or about October 24, DeVoe Rea telephoned Doria and asked him to submit
a contract proposal with clauses that might resolve Rea's inability to get the parties
together for bargaining. This allegedly was to be for Rea's own guidance in order
to ascertain whether or not Doria's position was one that Respondent could adopt.
Doria promptly mailed a proposal, dated October 24, to Rea, who did not respond,
although it appears that an inconclusive meeting was held at the Rea office during
the first week of November at which DeVoe Rea suggested that the Union try to
work out an acceptable proposal. The document read as follows:
(1) Separate agreement for the Regent Street Plant that will provide for a
Union Shop and check-off of dues.
(2) Separate agreement for the Avalon Plant that will provide for a modified
Union Shop and a check-off of dues.
(3) Both agreements to run for the same term-anything from three to
five years.
(4) The other details of the agreements such as wages, seniority, etc., to be
worked out in the bargaining conferences that will take place following the
basic agreements set forth above.
(5) The negotiations to proceed on the basis that if final mutually accept-
able agreements are reached for both plants, then the basic agreements set
forth above become effective and the conditions will govern the final form
of the contracts.
No committment (sic) with respect to the above agreements, shall exist be-
tween us until such time as final agreements in both plants are completed and
finally agreed to, nor shall the division of the two plants for the purpose of
establishing the two agreements be construed as a waiver on the part of the
Union of the appropriateness of the single collective bargaining unit for the
two Deutsch plants involved. [Emphasis supplied.]
About this time, the holding of another election at the Avalon plant became the
chief topic of discussion between the parties. Aiken testified that he was not certain
whether he or Doria proposed it, but a preponderance of the evidence demonstrates,
and I find, that it was Aiken. Aiken, who had rejected the union offer of a card
check, admitted he told Doria that if the Union were willing to hold an election he,
Aiken, would recommend such a proposal to Respondent. Aiken testified that he
asked Doria for assurance that Doria would not be opposed to an election, in which
event he, Aiken, would recommend it to Respondent. He also testified that although
Doria expressed no opposition to an election, Doria was not in favor of it and ,never
agreed that the Board election was to have no force and effect.
While Secretary Holzman of Respondent testified that Doria, in a telephone con-
versation shortly before November 12, had proposed the election, his testimony
further discloses that in this talk Doria indicated that he had previously discussed
this matter with Aiken. Holzman allegedly suggested that Doria work out the
details with Aiken. Any doubt as to the source of the election proposal is dispelled
THE DEUTSCH COMPANY 1303
by an inspection of a preelection bulletin distributed to employees of Respondent
on November 9 by Holzman wherein he stated as follows:
For the past several weeks, we have been attempting, with the union, to arrive
at a reasonable solution to the problem of whether the union does, in fact,
represent the majority of you employees here at the Avalon plant.
The union claims to represent the majority of you but we are certain that
they do not. You know, of course, our position. We maintained that before
we would enter into negotiations with this union for the employees at the
Avalon plant, they would first have to prove in a free election, and by secret
ballot, that they do, in fact, represent the majority of you people.
We, therefore, have notified them that their present proposal of attempting
to secure additional necessary signed cards, without any control by anyone to
prevent possible coercion or intimidation, is unacceptable, and that unless and
until a free election by secret ballot is held to determine the wishes of the
majority of you people, we have no other choice but to maintain our present
position. [Emphasis added.]
I find, in view of the foregoing, that the proposal for another election emanated
from Respondent. This proposal was put to a vote by the Union at a union meeting
sometime early in November and was accepted. Needless to say, this was addi-
tional evidence that Respondent flatly and unconditionally refused to recognize the
Board certification insofar as it applied to Avalon employees without another ballot
of those employees.3
Considerable testimony was developed concerning a meeting held between the
parties on November 12 at which an agreement was signed to conduct a vote among
the employees at the Avalon plant. Among those present were Doria, Aiken, and
Holzman. There is some conflict among all three, although primarily between Doria
and Holzman, as to precisely what was said on this occasion concerning the election.
Aiken and Doria agreed that at the outset of the meeting Aiken had presented a
written proposal calling for an election among the Avalon employees and that, but
for certain minor changes, it was adopted later in the meeting.
According to Doria, it was agreed that if the Union won, Respondent's objections
to the unit established by the Board would be withdrawn and bargaining for Avalon
employees would start forthwith. On the other hand, if the Union lost, it was agreed
that the Union would relinquish its right to strike until the Board and the courts de-
cided the unfair labor practice issue raised by the pending charges.4 Doria admitted
stating that he did not want to represent the employees if a majority did not -wish union
3 Respondent has contended herein that the election proposal emanated from the
Union. According to Holzman , he encountered two representatives of the Union between
October 7 and 10, this being a time when Doria was out of town for several weeks. One
of the representatives , Nardi, allegedly stated on this occasion , which was a chance
meeting, that there was no need for the strike being carried on by the Union . Holzman
replied that the matter could readily be resolved if the Union ignored the Avalon plant,
whereupon Nardi suggested that the Union prove to Respondent that it represented a
majority of employees at both plants . Holzman displayed interest in the proposal and
Nardi allegedly proposed an election at Avalon . Nardi pointed out that this was not
official and that he would have to take it up with Doria. Holzman suggested that Nardi
transmit the proposal to DeVoe Rea and that Doria should take it up with DeVoe Rea or
Aiken. Nardi agreed to do so. Nardi did not testify herein and there is no evidence that
this matter went any further on the union side of the picture. According to Doria,
Nardi is a business representative of the Union , is subordinate to Doria, handles grievances
and organizational work, and has no authority to negotiate contracts. Actually, I deem
it unimportant herein whether Nardi was acting within the scope of his duties or not,
although the latter appears to be the case . This was at best idle talk between Holzman
and a man who was not handling contract negotiations ; indeed, Holzman did not know
Nardi's name and it does not appear that they had previously met. The simple answer
to this contention of Respondent is that it was Respondent 's consistent position, as set
forth, that Respondent from late September on wanted to test not only the election but
also the Board 's unit determination in the courts . The election proposal entered the
bargaining picture when Aiken presented it to Doris . This is reflected in Holzman's
bulletin to employees issued on November 9. And even if the source of the idea was a
union subordinate , the idea was presented only after Respondent rejected the Board
certification . This defense, for reasons appearing below, is not available to Respondent.
41t will be recalled that brief strikes had been taking place at both plants during
this period.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation, but contended that his remarks were addressed to majority repre-
sentation in the unit certified by the Board. The record does not disclose that Doria
ever agreed, during these negotiations, on the lack of appropriateness of that unit.
Aiken's testimony is not in basic conflict with that of Doria. According to Aiken,
Doria agreed that if the Union lost at Avalon the Union would not engage in any
strikes and would not insist on bargaining negotiations at Avalon until the Board
and the courts passed on the issue unhampered by any strike pressure on Respondent.
According to Holzman it was agreed that if the Union won Respondent would
bargain at Avalon, but that if the Union lost the Avalon election, Doria would
walk away and do nothing further with respect to attempting to represent Avalon
employees.
At the end of the meeting the parties affixed their signatures to the following
document:
AGREEMENT
This Agreement, made and entered into this twelfth (12th) day of Novem-
ber, 1956, by and between THE DEUTSCH COMPANY and United Industrial
Workers, Local 976, AIW-AFL-CIO, is hereby entered into for the purpose
of establishing the following:
(1) A secret ballot shall be conducted on Friday, November 16, 1956 in
order to establish whether or not the Union represents a majority of the.pro-
duetion and maintainence (sic) employees of the Avalon plant.
(a) In order to effectuate this purpose all present employees of the
Avalon plant who were employed on July 8, 1956 or prior thereto shall be
eligible to vote.
(b) Up to four (4) representatives of the Union and up to four (4)
representatives of management shall conduct the election and these eight
(8) representatives shall act as observers and have the right to challenge
ballots for sufficient cause.
(c) If there are challenged ballots, sufficient in number to affect the
results of the election, the parties shall agree on the selection of an im-
partial umpire who shall decide the challenges on the basis of the unit
description of and in accordance with the files of National Labor Rela-
tions Board case No. 21-RC-4365.
(2) If by reason of said secret ballot referred to above, the Union fails to
establish a majority representation under the terms set forth above, the Union
agrees to refrain from any and all harassing actions against the Company in-
cluding but not limited to strikes, partial strikes, sit-downs, walkouts, slow-
downs or any type of work stoppage or interference of any kind with production;
coercion, intimidation or any other type of interference with the activities of
its employees from that date and the Company agrees it will not discriminate,
coerce, intimidate or lock-out any employees because of their support of or
membership in the Union, until the question of representation is tested and
determined by the circuit court of appeals.
(3) If by reason of said secret ballot referred to above, the Union establishes
a majority representation, the Company agrees that it shall immediately
enter into bargaining negotiations with the Union for the Avalon plant at times
and places mutually agreeable to both parties.
(4) The Company and the Union agree to commence bargaining negotia-
tions immediately following the signing of this Agreement, at times and places
mutually agreeable to both parties, for the Regent Street plant.
An inspection of this agreement discloses that it is in accord with the position
taken herein by Doria and indeed the position substantially of Aiken. The agree-
ment, signed by all interested parties, specifically states that Respondent would
commence immediate bargaining for Avalon if the Union received a majority of the
votes but that if it failed, the Union would refrain from harassing action including
but not limited to strikes, partial strikes, sitdowns, walkouts, slowdowns, or
work stoppages.
It is clear from the foregoing and I find that the thrust of this agreement was a
decision to conduct an election among the Avalon employees, with agreement that
if the Union won Respondent would abandon its decision to challenge the Board
election and unit findings and would recognize the Union, but that if the Union lost the
Union would abandon its strike and harassing techniques and would wait for the
Board and the courts to determine the merits of the pending unfair labor practice
charges. I find that this was not an undertaking on the part of the Union, if it
THE DEUTSCH COMPANY 1305
lost the election at Avalon, to abandon or waive any rights to represent these em-
ployees pursuant to the Board certification .5
The election was scheduled for November 16 and was conducted with the full
cooperation of Respondent. The vote among Avalon employees alone was 169 to
137 against the Union. In addition, 42 ballots were challenged because they were
cast by employees hired subsequent to the eligibility date of July 8, the original
eligibility date established by the Board. Seven other ballots were challenged for
reasons not disclosed herein. It may be noted that in July, Regent had approxi-
mately 85 employees and Avalon approximately 355; in November, there was little
change with Regent having 75 employees and Avalon 385.
Another meeting between the parties took place on December 4 at which time
Doria renewed his request for bargaining at both plants, stating that he was not
relinquishing his claims to bargain for Avalon. Doria testified that the parties
went over each clause of the original contract proposal previously submitted by the
Union on September 14. Doria sought to establish whether Respondent would
discuss each item with respect to both plants and it was Aiken's admitted position
that while Respondent would discuss a contract with the Union covering Regent
employees, it would not discuss a contract covering Avalon employees. While
Aiken claimed that on this occasion he agreed with Doria on some of the items,
it is clear and I find that this agreement, if there was one, applied only to Regent
and not to Avalon.
There was one further contact between the parties on December 14, 1956. Ac-
cording to Doria, he asked Aiken in a telephone conversation for the information
originally requested in the letter of September 14 relative to job titles, rates of pay,
and existing employee benefit programs. Aiken and Doria both agreed that Doria
offered to enter into a contract for the Regent plant with the proviso that if the
Board and the courts ultimately decided the charged unfair labor practices in favor
of the Union, the contract would then be extended to cover the Avalon plant. Aiken
suggested that Doria put his proposal in writing whereupon he, Aiken, would take
it up with his client; Doria never did so. Aiken testified that he did take up the
proposal, nevertheless, with his client, but the record does not disclose the results
of that conversation. It may further be noted that in none of these contacts between
the parties, both before and after the change of name of the Union, was that matter
raised by Respondent.
3. Contentions of Respondent
(a) Initially, it is the contention of Respondent, ably advanced, that the single
two-plant unit found by the Board in the representation proceeding to be appropriate
is actually not appropriate and that as a result there has not been a refusal to bargain
with a majority representative in an appropriate unit.
But this precise contention as to unit was made in the representation proceeding
and resolved adversely to Respondent. While the Board there noted that separate
units at each plant might be appropriate, in view of the not unreasonable considera-
tions listed in its decision set forth herein a single two-plant unit was found to be
appropriate in this instance. Evidentiary matter in support of this contention was
advanced by Respondent in the representation proceeding and considered by the
Board, as its decision discloses. Other evidence was allegedly not developed in its
entirety; the reason therefor, it is clear, was not the unavailability of such material.
The most that can be said for the position of Respondent is that in the representation
proceeding it failed to adequately appreciate the possibility that the Board might
make the unit finding that it ultimately did.
Respondent sought herein to adduce additional evidence bearing on the unit
question on the theory that it was newly discovered evidence. Objection was sus-
tained thereto because it is clear and I find that this was not newly discovered
evidence. It was evidence which was available to the Respondent at the time of the
representation hearing and, in the posture most favorable to Respondent, it was
developed there but not developed as fully as it might have been. Actually
Respondent has submitted for reconsideration the same arguments heretofore
raised; the only difference is in the scope of the presentation.
'These conclusions are buttressed by the statements contained in a preelection speech
made by Holzman to his employees subsequent to November 12. Holzman stated on that
occasion that the agreement provided that if the Union lost the election it had agreed
"to stop all interference with us at Avalon." I deem this to be far more indicative of a
no-strike pledge than of an agreement to abandon rights under a Board certification.
Indeed, Doria insisted at the next meeting on December 4 that the Union had not
relinquished its bargaining rights at Avalon.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor has there been any change in the nature of Respondent's business enterprise
subsequent to the representation hearing. The operation is continuing in precisely
the same manner as it always has. There have been no changes in job duties, job
classifications, or in products manufactured. What Respondent terms herein as
newly discovered evidence is actually no more than at best a fuller appreciation of
the nature of its business operations, although not necessarily so. I find, therefore,
that this is not newly discovered evidence and that there has been no change in
the nature of Respondent's business which might warrant the reopening of the unit
question.
Corollary to this is Respondent's claim that the newly discovered evidence con-
sists of the antiunion view of the employees of the Avalon plant. This I deem not
to be newly discovered evidence bearing on the unit question and this is taken up
hereinafter in another aspect of the case.
As I read the cases, absent a clear and unequivocal showing of drastically changed
,or unusual circumstances, the Board will not permit relitigation of its unit finding
in a subsequent unfair labor practice proceeding. The courts have frequently
observed that the Board's determination where reasonable and not arbitrary is
binding on the reviewing court. There is not an iota of evidence herein that the
Board was arbitrary or capricious in its unit determination. While finding that
separate plant units might be appropriate, the Board in effect found that a single
two-plant unit was the more appropriate under the circumstances of this case. This
was entirely consistent with the mandate of the statute which in Section 9 (b) directs
the Board in each case only to determine "the unit appropriate for the purposes of
collective bargaining."
Thus, in N. L. R. B. V. Pacific American Shipowners, 218 F. 2d 913 (C. A. 9),
the concurrence noted 'hat it was for the Board to determine the appropriate unit
and not the court. This, it may be noted, was a case where the Board had rejected
the. respondent's claim for a smaller unit than that established by the Board. The
same court has also noted that unless the decision of the Board passes the bound
of permissive discretion the reviewing court cannot interfere. N. L. R. B. v. Lettie
Lee, Inc., 140 F. 2d 243 (C. A. 9). I fail to see how the Board's decision in the
instant case remotely constitutes an abuse of discretion.
Several other decisions of the same court are of interest. In N. L. R. B. v. Shannon
& Simpson Casket Company, 229 F. 2d 652 (C. A. 9), the employer was found to
be in contempt for refusing to bargain with the certified bargaining representative.
The employer there attacked the Board's unit finding and, not unlike the instant case,
claimed that it had acted on advice of counsel. This I deem to be comparable
to the contention herein that Respondent's industrial relations counsel in the repre-
sentation proceeding had not fully appreciated the possibility of a unit finding other
than the separate units there sought by Respondent. The court found that the
Board had acted properly within its designated sphere of influence.
The same court noted in Foreman & Clark, Inc. v. N. L. R. B., 215 F. 2d 396 (C. A.
9), that the Board's unit determination was not to be set aside unless it was arbitrary
and capricious. It went on to note that the employer had little or no interest in the
unit selected and pointed to the Supreme Court decision that a Board determination
on unit was rarely to be disturbed. Packard Motor Car Co. v. N. L. R. B., 330 U. S.
485. See, also, N. L. R. B. v. American Steel Buck Corp., 227 F. 2d 927 (C. A. 2);
N. L. R. B. v. Smythe, 212 F. 2d 664 (C. A. 5); and Mueller Brass Co. v. N. L. R. B.,
180 F. 2d 402 (C. A., D. C.).
This reduces itself to an attempt by Respondent to relitigate in an unfair labor
practice proceeding an issue covered and litigated in a representation proceeding.
The courts have held that a single trial of such an issue is sufficient and that the
Board properly refuses to reconsider or relitigate an issue under such circumstances.
See N. L. R. B. v. Worcester Woolen Mills Corporation, 170 F. 2d 13 (C. A. 1)
cert. denied 336 U. S. 903. And the Supreme Court has expressly approved the
Board policy of not relitigating in a refusal to bargain case issues previously deter-
mined in a representation proceeding. Pittsburgh Plate Glass Company v. N. L. R. B.,
313 U. S. 146. See also Allis-Chalmers v. N. L. R. B., 162 F. 2d 435 (C. A. 7); and
Shoreline Enterprises, 114 NLRB 716. Accordingly, Respondent's contention herein
is rejected and the Board's unit finding herein is deemed to be binding.
(b) Respondent also contends that the election conducted by the Board was
tainted with irregularity, was void, and that it ought not to be given any weight
herein.
It will be recalled that the Decision and Direction of Election by the Board in
the representation case issued on July 9, 1956, and that Respondent has not herein
challenged receipt of that document. Soon thereafter, an election date of August 8
was set up by the Regional Office. Respondent relies herein on the fact that on
THE DEUTSCH COMPANY 1307
July 24 it petitioned the Board for reconsideration of its Decision and Direction
of Election and asked that the election be suspended pending a determination by the
Board of its motion . As set forth , the Board denied Respondent 's motion on August
2, but Respondent 's copy of the Board order was not delivered to Respondent until
August 10 , subsequent to the election . It is not disputed herein, and it has been
found, that Respondent was advised by the Regional Office as early as August 3
that the Regional Office intended to proceed with the election as scheduled. The
election was held on August 8 over the objections of Respondent.
Initially, it is Respondent's claim that the election was void and unlawful because
it was held prior to Respondent 's receipt of the Board order denying its motion for
reconsideration . Assuming for the purposes of this discussion that Respondent may
not be assessed with receipt of the Board ruling of August 2 until receipt of the order
on August 10, there still remains the point raised by the General Counsel that
Respondent 's petition for reconsideration was a motion not provided for in the
Board's rules , that both the filing of the motion and the ruling on it were voluntary
or gratuitous acts by the Board, and that there has been no abuse of due process.
The fact that the Board on occasion , as contended by Respondent , has treated with
such motions , does not mean that a respondent is entitled to insist upon consideration
of such a motion before carrying out its obligations under the Act.
An inspection of the published Rules and Regulations of the Board discloses that
they do not provide for a pleading of this nature . While it is true that the Board
at times, and indeed in the instant case, has entertained motions of this nature, the
fact still remains that this is a voluntary act on the part of the Board which a party
is not entitled to rely on. The Board has not taken any action here pursuant to
unpublished rules in contravention of the Administrative Procedure Act, 5 U. S. C.
1001 et seq.
This is not a situation of an employer who was ignorant of an impending election.
Respondent was on notice that the election had been directed by the Board and was
scheduled to be held on a specified date; cooperation by Respondent in the conduct
of the election would not have worked to its prejudice , because had the Board enter-
tained and seen merit in the petition for reconsideration , a ruling favorable to Re-
spondent could just as well have been forthcoming after the election. There remains
only the established policy, as indicated by the Board elsewhere , that the duty to
bargain is not postponed or suspended by the pendency of a petition for reconsidera-
tion by the Board of a decision . Pasco Packing Co., 115 NLRB 437, 447; Borden
Co., 108 NLRB 807, enforced 227 F. 2d 160 (C. A. 5); and Trinity Steel Co., 103
NLRB 1470, set aside on other grounds 214 F. 2d 120 (C. A. 5).
This presents another facet of this contention by Respondent which is that the-
election was not conducted in the plant , that it was conducted on the sidewalk, and
that less than 50 percent of the Avalon plant electorate voted, as a result of which,
the election ought not to have been given any weight by the Board and should have
been declared void.
But it is immediately apparent that the circumstances relied upon herein by Re-
spondent as rendering the election unreliable were of Respondent 's own making.
Respondent does not claim that it endeavored to cooperate in the holding of the
election. To the contrary , it appears that it was Respondent 's adamant insistence
upon a prior ruling on its petition for reconsideration and its refusal to permit the
election to be held in the Avalon plant , contrary to customary practice in Board elec -
tions, which created the conditions of which it now complains.
The Board has heretofore held that an employer's doubt of the current appropriate-
ness of a certified unit does not warrant the disregard by an employer of such unit.
Pacific Telephone and Telegraph Company, etc., 113 NLRB 478. Moreover, an
employer who has acted in disregard of his obligations under the Act may not plead
its own conduct by way of defense . N. L. R. B. v. Medo Photo Supply Co., 321
U. S. 678 , and N . L. R. B. v. Franks Bros. Company , 321 U . S. 702.
Finally diapositive of this phase of the case is the fact that the Board's Rules and
Regulations do set up a procedure for challenging the validity of an election and
that Respondent has utterly failed to comply therewith . Section 102 . 61 of the Rules
and Regulations specifically provides, inter alia, that objections to conduct affecting
the results of the election are to be filed within 5 days thereof and that if none are
filed the Regional Director shall certify the winning representative , if such be the
case , whereupon the proceeding is closed. Significantly , the Decision and Direction
of Election in the representation case specifically stated that the election would be
conducted subject to Section 102 . 61 of the Rules and Regulations of the Board. It is
noteworthy that the Board's Statement of Procedure , duly published in the Federal
Register, also directs attention to the 5-day rule in Section 101.18 thereof.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent in the instant case, did not file any objections within the 5-day period,
and indeed it has filed none at any time. Apparently its position is basically that
anything that took place prior to its receipt of the Board's order denying its petition
for reconsideration was unlawful. I find, therefore, that it was incumbent upon
Respondent to have filed objections to the conduct of the election within the 5-day
period specified by the Rules and Regulations of the Board, that Respondent has
not done so, and that by such failure to comply with the Rules Respondent has
waived any and all objections to the conduct of the election. Respondent's con-
tention that the election was invalid is rejected. N. L. R. B. v. Conlon Bros. Mfg.
Co., 187 F. 2d 329 (C. A. 7) ; Sears Roebuck & Co., 115 NLRB 266; General Box Co.,
115 NLRB 301; Smithfield Packing Company, Incorporated, 112 NLRB 940; and
General Electric Company, 103 NLRB 110.
(c) Respondent further contends that the results of the private election conducted
by. Respondent and the Union on November. 16, pursuant to their agreement of
November 12, disclose that the Union is not the majority representative of the
Avalon employees and, further, that the Union has thereby waived its rights to
represent those employees under the Board certification. As noted, the Union lost
this private election at Avalon by a small margin.
Here, as elsewhere, the General Counsel relies on the doctrine approved by the
Supreme Court in Ray Brooks v. N. L. R. B., 348 U. S. 96, that an employer is under a
statutory duty to bargain with a union certified by the Board, even though shortly after
the election the union has lost its majority without the fault of the employer. The
theory is that a certification must be honored by a reasonable period, ordinarily 1
year in the absence of unusual circumstances, pursuant to the system devised by
Congress, and that an employer may not resort to self-help.
A fortiori, as the General Counsel in effect contends, the certification must be
honored where, as will appear below, the loss of a majority is caused by the employer's
unfair labor practices. I presume that it is Respondent's contention that in the
present case there are unusual circumstances within the meaning of the Brooks de-
cision. For the reasons appearing below, I find no merit in this contention of
Respondent.
As set forth, the Union was certified for a single two-plant unit on August 20, 1956.
Thereafter, the Union sought to enter into a collective-bargaining agreement cover-
ing both plants of Respondent. As early as September 26, Aiken, a bargaining
representative for Respondent, challenged the right of the Union to represent the
Avalon plant as well as the Regent plant, although the Union had been certified
as the representative for both, and DeVoe Rea attacked the Board election as
invalid. Thereafter, on or about October 1, Aiken informed Doria that he, Aiken,
was not authorized to bargain for the Avalon plant because Respondent wished to
challenge the unit. Indeed, Aiken admitted herein that both he and his superior,
DeVoe Rea, consistently took the position, commencing soon after September 26,
that in view of Respondent's doubt of a union majority at Avalon, the Union would
not be recognized as bargaining representative at that plant. This position was
never abandoned prior to November 12, or at any time, and on November 1, Aiken
affirmed this position in a letter to the Regional Office of the Board wherein he
attacked the certification as invalid and the Board unit finding as improper and
admitted the refusal to bargain.
It was only after this inability on the part of the Union to achieve recognition
at Avalon that the Union entered into the November 12 agreement. And this was
done only after its card-check proposal was rejected by Respondent which in turn
came up with the proposal for the new election. Faced with this intransigence on
the part of Respondent, the Union entered into an agreement with Respondent to
conduct a ballot among the Avalon employees; it was further agreed that if the
Union won Respondent would bargain on the basis of the broad unit certified by
the Board, but that if the Union lost it would not engage in concerted action against
Respondent. Significant to an appreciation of this agreement, is the fact that the
Union had been calling sporadic strikes against Respondent during this period.
The very text of the agreement notes that the Union, in the event of an election
loss, would abandon harassing action pending determination of the question of
representation in a Court of Appeals. I have found this was not a waiver of any
rights under a Board certification, but was rather a no-strike pledge on the part of
the Union. And at no other time did the Union waive or offer to waive its rights under
the certification.
The Board and the courts have frequently noted that a waiver of statutory bar-
gaining rights will not be found or inferred unless there is a clear and unmistakable
showing that the waiver has occurred. I find on this record that there was no such
THE DEUTSCH COMPANY 1309
waiver by the Union of its status under the Board's certification with respect to the
Avalon employees in the event of an election loss or otherwise. American Smelting
and Refining Company, 115 NLRB 55; California Portland Cement Co., 101 NLRB
1436; Heckman Furniture Co., 101 NLRB 631, enforced 207 F. 2d 561 (C. A. 6);
Alexander Manufacturing Company, 110 NLRB 1457; Ludwig Baumann Company,
106 NLRB 812; and E. W. Scripps Company, 94 NLRB 227. See also N. L. R. B.
v. Geigy Company, Inc., 211 F. 2d 553 (C. A. 9) cert. denied 348 U. S. 821.
Moreover, as found, the election proposal emanated from Respondent and was
assented to by the Union only after Respondent had adamantly denied it recognition
at Avalon, despite the recent certification, and had rejected the Union's offer of a
card check. If the Union was entitled to recognition in the unit duly certified by
the Board, as found below, Respondent's unqualified refusal to grant such recognition
was an unfair labor practice which, on this record, marked by futile attempts to
achieve recognition commensurate with the certification, tended to destroy the
union majority. It is well established by now that an employer cannot plead its
unfair labor practices by way of defense. I find therefore that the private ballot did
not constitute a waiver by the Union of its rights under the Board certification.
N. L. R. B. v. Medo Photo Supply, supra; N. L. R. B. v. Franks Bros. Co., supra;
N. L. R. B. v. Geigy Co., Inc., supra; N. L. R. B. v. Idaho Egg Producers, Inc.,
229 F. 2d 821 (C. A. 9); and N. L. R. B. v. Parma Water Lifter Co., 211 F. 2d
259 (C. A. 9).
(d) Respondent has also contended that there was no proper request to bargain
by the Union and that in any event Respondent did engage in good-faith collective
bargaining, This contention is treated below.
4. Conclusions
(a) The appropriate unit
The complaint alleges that the following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act:
All production and maintenance employees of Respondent at its Avalon and
Regent plants, including truckdrivers, yardmen, shipping and receiving em-
ployees, inspection employees, warehouse employees, parts movers, production
control employees, tool crib attendant, shop clerical employees, leadmen and
foreman-leadmen, excluding professional employees, draftsmen, engineers, tech-
nical employees, office clerical employees, watchmen, guards, and supervisors.
This is the common production and maintenance unit regularly found to be ap-
propriate by the Board and is the identical unit found by the-Board to be appropriate
in the decision of July 9, 1956, in the representation proceeding. And this is the
unit for which the Union was certified as bargaining representative on August 20, 1956.
I have heretofore found that Respondent's contentions with respect to the ap-
propriateness of the unit have raised no issues involving changed circumstances,
or evidence newly discovered, in the true sense of the term, subsequent to the Board
decision which would impinge upon the appropriateness of such a unit . Respondent's
contentions on unit and the same claims raised herein were considered by the Board
and resolved adversely to Respondent in the representation proceeding. I find,
under the foregoing circumstances, that the above-described unit is a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
(b) Majority representation in the appropriate unit
The Union was certified by the Board on August 20, 1956, after winning the
election conducted by the Board in the appropriate unit on August 8. Respondent's
contentions attacking the election proceeding and the validity of the certification
have been heretofore considered and found to be lacking in merit. I find that on
August 20, 1956, and at all times thereafter the Union, by virtue of Section 9 (a)
of the Act, was and now is the duly designated representative of a majority of the
employees in the above-described appropriate unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment, or other con-
ditions of employment.
(c) The refusal to bargain
As indicated, Respondent has challenged the Union's requests for bargaining as
invalid demands and claims that Respondent has bargained in good faith. There
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no evidence to support such a finding. In its initial letter after the certification,
the Union enclosed a proposed contract to Respondent on September 14; asked to
enter into negotiations at the earliest possible date; and requested that the Union
be supplied with certain information on job classifications, rates of pay, and benefits
which the Union deemed to be necessary for proper bargaining. The subject matter
sought was clearly appropriate and the request not unreasonable. The presumptive
relevance of this information bearing on the wage structure and the right of the
collective-bargaining representative to receive it is by now well established.
N. L. R. B. v. F. W. Woolworth Co., 352 U. S. 938; N. L. R. B. v. Heknian Furniture
Co., 207 F. 2d 561 (C. A. 6); and N. L. R. B. v. New Britain Machine Co., 210 F. 2d
61 (C. A. 2).
The proposed contract, although a lengthy one and a form contract, was one
dealing with terms and conditions of employment. Although Respondent has char-
acterized it as a "boiler plate" type of agreement, presumably a reference to its
general nature, I fail to see how this can be of any avail to Respondent. The Union
was not required to submit a contract which met with Respondent's pleasure; and
although Respondent was at liberty to submit a counterproposal, it never saw fit to
do so. Moreover, at a meeting on September 26, Doria listed eight items which the
Union wished to have included in a collective-bargaining agreement. All of these
were terms customarily found in collective-bargaining agreements. Significantly,
as early as this date, Respondent challenged the right of the Union to bargain for
all its employees under the certification, manifestly a reference to the Avalon plant.
On October 1, the Union again wrote to Respondent and requested inter alia a
meeting to negotiate on the union-contract proposals. In addition, the request for
the information previously sought was renewed. As found, it was on or about this
date that Respondent's representative, Aiken, put the Union on specific notice that
he had no authority to bargain for the unit certified by the Board, because Respondent
wished to challenge it; this position was repeatedly taken thereafter by Respondent
which never retreated therefrom. Still later, on October 24, the Union again sub-
mitted to Respondent a contract proposal covering the unit certified by the Board.
Although this particular proposal was solicited by Respondent's representative,
neither this nor the earlier proposals were ever countered with a contract proposal
from management. In fact, in his November 1 letter to the Regional Office, Aiken
admitted the refusal to bargain.
It is clear that Respondent did no more than meet with the Union. It did not meet
the Union with an open mind in an effort to arrive at an agreement, because at no
time subsequent to the certification did it ever agree to bargain with the Union for
the broad unit certified by the Board. In the posture most favorable to Respondent,
the evidence discloses only that it did discuss on December 4 contract terms restricted
to the Regent plant, but only after Aiken reiterated that management had not
authorized him to bargain for Avalon. While Respondent did agree in the November
12 agreement to accord the Union recognition at the Avalon plant, this was predi-
cated solely on the Union winning the private election on November 16 at that plant.
This was in manifest disregard of its obligations under the Act and in derogation
of the Board's certification. And while the Union by a small margin failed to win
the November 12 election, this loss, as found, inevitably resulted from Respondent's
refusal to bargain for a period of almost 2 months for the Avalon employees.
Respondent may not plead its own unlawful conduct by way of defense. N. L. R. B.
v. Franks Bros., supra.
In sum, there was a continued refusal to acknowledge the right of the Union
under its certification to bargain for both plants. Solicitation of the Union's position,
discussion of their respective legal positions, and a failure to submit a counterpro-
posal impel the conclusion that Respondent did not meet its obligations under the Act.
The Court of Appeals for the Ninth Circuit has noted that the Board's deter-
mination of an appropriate unit is "a much more involved and complicated.
matter . . . than the determining of the mere number constituting a majority con-
trol of a union." The court approved the Board contention that "the mere lapse
of time and good faith of the employers in feeling a doubt" as to the present ap-
propriateness of certified units did not warrant the employer in dealing with an-
other union. Brown v. Pacific Tel. & Tel. Co., 218 F. 2d 542 (C. A. 9).
The concurrence drew attention to "The general Congressional policy to make
the Board the sole judge of what constitutes an appropriate unit and the apparent
purpose of the Act to see to it that the rights of labor unions certified by the Board
should not be lost or frittered away through the acts of persons violating the
Act.. It is to be noted that the certifications in that case were several years
old. It follows that the instant certification, less than 2 months old at the time it
was challenged by Respondent, is at the very least on an equal if not stronger footing.
THE DEUTSCH COMPANY 1311
The Supreme Court has stated, "If an employer has doubts about his duty to
continue bargaining, it is his responsibility to petition the Board for relief, while
continuing to bargain in good faith at least until the Board has given some indica-
tion that his claim has merit. Although the Board may, if the facts warrant, revoke
a certification or agree not to pursue a charge of an unfair labor practice, these
are matters for the Board; they do not justify employer self-help or judicial inter-
vention. The underlying purpose of this statute is industrial peace. To allow
employers to rely on employees' rights in refusing to bargain with a formally desig-
nated union is not conducive to that end, it is inimical to it. Congress has devised
a formal mode for selection and rejection of bargaining agents and has fixed the
spacing of elections, with a view of furthering industrial stability and with due regard
to administrative prudence." Ray Brooks v. N. L. R. B., supra.
I find that the certification of the Union as the majority representative of the
employees in the unit found appropriate by the Board was valid and outstanding at
all times material herein, that Respondent refused to grant the Union the recognition
in that unit to which it was entitled, and that on September 26, 1956, the date
Respondent first challenged the status of the Union, and at all times thereafter,
Respondent has refused to bargain collectively with the Union within the meaning
of Section 8 (a) (5) of the Act. I further find that Respondent, by the foregoing
conduct, has interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act, thereby violating Section 8 (a)
(1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in con-
nection with its business operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V.' THE REMEDY
Having found that Respondent has engaged in certain 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.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. United Industrial Workers Local 976, AIW-AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. The Deutsch Company is an employer within the meaning of Section 2 (2)
of the Act.
3. All production and maintenance employees of Respondent at its Avalon and
Regent plants, including truckdrivers, yardmen, shipping and receiving employees,
inspection employees, warehouse employees, parts movers, production control em-
ployees, the tool crib attendant, shop clerical employees, leadmen and foreman-
leadmen, but excluding professional employees, draftsmen, engineers, technical
employees, office clerical employees, watchmen, guards, and supervisors constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. United Industrial Workers Local 976, AIW-AFL-CIO, was on August 20, 1956,
and at all times thereafter has been and now is 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 September 26, 1956, and thereafter to bargain collectively with
United Industrial Workers Local 976, AIW-AFL-CIO, as the exclusive representa-
tive of its employees in the aforesaid 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 its employees in the exercise of the rights guaranteed by Section 7 of
the Act and has thereby engaged 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 com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]