The Electric Furnace Co.

National Labor Relations Board - Board Decisions

Jun 29, 1962

137 N.L.R.B. 1077 (N.L.R.B. 1962)

THE ELECTRIC FURNACE CO ., ETC. 1077
4. The Union is a labor organization within the meaning of the Act.
5. By discriminating in regard to the hire and tenure of employment of Mary C.
Harris and Bettie Gene Komorek , thereby discouraging membership in the Union,
Respondent Elias has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Louise
McCord, thereby discouraging membership in the Union, Respondents Greenfield
and Holiday have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a), (3) of the Act.
7. By interfering with , restraining , and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondents Elias, Greenfield, and
Holiday have engaged in and are engaging in unfair labor practices within the mean-
ing of Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
9. The General Counsel has not proved by a preponderance of the evidence that
Respondents Elias, Greenfield , or Holiday : ( 1) violated Section 8 (a)(1) of the Act
by promulgating an unlawful written no -solicitation rule; or ( 2) interfered with, re-
strained , or coerced their employees in the exercise of the rights guaranteed by the
Act, except by the acts and conduct found herein to have been violative.
[Recommendations omitted from publication.]
The Electric Furnace Co . and Salem Fabricating & Machine
Co.' and United Steelworkers of America , AFL-CIO, District
26, Sub-District No. 5
The Electric Furnace Co . and United Steelworkers of America,
AFL-CIO, District 26, Sub-District No. 5. Cases Nos. 8-CA-
2272 and 8-CA-2355. June 29, 1962
DECISION AND ORDER
On October 23, 1961, Trial Examiner Henry S. Salim issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that it be dismissed in its entirety, as
set forth in the Intermediate Report attached hereto. Thereafter, the
Union and the General Counsel filed exceptions to the Intermediate
Report and briefs in support thereof, and the Respondent filed a brief
in support of the Intermediate Report.
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 briefs, and the entire record in
this case, and finding merit in the exceptions of the Union and the
General Counsel, hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent
herewith.
The Union and Electric Furnace had engaged uninterruptedly in
.collective bargaining from 1951 through 1958. Beginning in 1959, the
' Hereinafter referred to as Electric Furnace and Salem, or as Respondent collectively.
137 NLRB No. 120.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'bargaining obligations of Electric Furnace were assumed by Salem,
its wholly owned subsidiary, which undertook manufacturing opera-
tions with about 130 employees, represented by the Union in a produc-
tion and maintenance unit. Salem continued operations until Au-
gust 18, 1960, when, due to a substantial reduction in business, it was
'liquidated and its remaining functions, employees, and bargaining ob-
ligations reverted to Electric Furnace. During Salem's 20 months of
operations, the Union's contract terminated (November 1959), and
pursuant to a decertification petition, an election was held which the
Union won. The Union was thereupon recertified on January 25,
1960. When Salem was liquidated in August 1960, the unit repre-
sented by the Union had been reduced from its original 130 employees
to about 23.
After the Union's recertification in January 1960, bargaining for
a new agreement began but was soon discontinued. When the limited
production operations were transferred from Salem to Electric Fur-
nace in August, bargaining recommenced with the first meeting being
held on September 8, 1960. One of the matters discussed then was a
pension agreement which had been part of the collective-bargaining
contracts since 1951. It covered all employees both within and outside
the unit represented by the Union, and had at all times been financed
solely by the Respondent. The Union requested the Respondent to
furnish it the names of employees who might through age and service
with the Employer become entitled to deferred vested retirement pen-
sion benefits and with certain documents relating to the Employer's
financing of the pension agreement.2 The pension agreement as con-
tained in the negotiated contracts between the Union and the Respond-
ent provided that the latter would determine the manner and means
of providing and paying the pension benefits set forth in the contract,
and that no employee would have any right or interest to any portion
of the pension funds prior to his retirement, except that laid-off em-
ployees over age 40 with more than 15 years' service were eligible to
apply for and receive benefits when they attained age 65. The Union's
request for information when bargaining resumed in September was
based on its desire to determine the deferred vested benefits to which
laid-off employees would be entitled at age 65. As the pension agree-
ment and the collective-bargaining contract set out the factors which
determined eligibility for such benefits, namely, length of service,
average monthly income, and minimum age of 40 at time of layoff, the
request of the Union was for a list of employees containing the above
2 These were known as the pension plan, which the Employer had filed with the Internal
Revenue Service, describing the operation of the pension trust for the purpose of obtain-
ing certain tax benefits, and the pension trust agreement between the Employer and a
bank which set out the Employer's obligations with respect to the trust fund from which
retirement benefits were paid The Union was not a party to this agreement since con-
tributions were made only by the Employer.
THE ELECTRIC FURNACE CO., ETC. 1079
items of information, together with the pension plan and pension trust
agreement. The Respondent refused to turn over the latter two docu-
ments but did furnish the Union with the names of those employees
who were over 40 and who met the minimum requirements of 15 years'
continuous service. It did not, however, supply the information as to
each individual's length of service, his actual age, or his average
monthly income which would have enabled the Union to determine the
amount of each individual's vested retirement benefit. Upon the Re-
spondent's refusal to furnish the requested information, further bar-
gaining sessions were suspended.
The Union thereafter filed a charge with the Board alleging that
the Respondent had violated Section 8(a) (5) by withholding the re-
quested pension plan information, and on January 7, 1961, the Gen-
eral Counsel issued a complaint, in case No. 8-CA-2272, alleging the
substance of the charge. Upon issuance of the complaint, the Em-
ployer decided not to contest the matter further and thereupon sup-
plied the requested information to the Regional Director for dis-
closure to the Union. The Union, with the approval of the Regional
Director, then agreed to withdraw its charges and the complaint was
thereupon dismissed.
Meanwhile, before the Employer had turned over the pension
information for the Union's inspection, the Employer agreed to re-
sume bargaining, at the Union's request, on February 10, 1961. How-
ever, just a few days after turning over the pension information, the
Employer filed a representation petition based on its alleged good-
faith doubt of the Union's continued majority status following the
close of the certification year on January 25, 1961. The Regional
Director issued a notice of hearing pursuant to the Employer's peti-
tion and immediately thereafter the Employer canceled the meeting
scheduled for February 10, telling the Union that there was no purpose
in continuing bargaining in view of its doubts as to the Union's ma-
jority status. The Union thereupon filed a new charge alleging a re-
fusal to bargain on the Respondent's part on and after February 9,
1961. On May 5, 1961, the Regional Director retracted his approval
of the withdrawal of charges in Case No. 8-CA-2272, rescinded his
dismissal of that complaint, issued a new complaint in Case No.
8-CA-2355, and dismissed the Employer's representation petition.
Without deciding whether the Union was entitled to the pension
information it had requested, the Trial Examiner decided that the
consolidated complaint should be dismissed because the Respondent
had in fact already supplied the pension information and there was
no evidence to establish any relationship between its earlier refusal to
do so and the dissipation of the Union's majority. He found that the
Respondent's refusal to bargain on and after February 9, 1961, and the
filing of its representation petition depended on its motivation, and
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Regional Director, by setting the representation case down
for hearing, had confirmed the Respondent's good-faith belief that a
question concerning representation existed which the Employer was
entitled to have resolved by an election. He therefore concluded that
the Respondent was justified in not continuing bargaining with the
Union pending the resolution of the latter's majority status.
As noted above, the Trial Examiner did not pass on the issue of the
Union's right to the pension information, although he did refer to the
court's opinion in the Sylvania case 3 upon which the Respondent re-
lied for its alleged right to refuse the information. In Sylvania, the
court held that the cost of a group insurance plan financed solely by
the Employer was not "wages" and therefore not a mandatory subject
of bargaining, although benefits under such plan could be considered
as "wages." In the instant case, the Union was not seeking an increase
or adjustment of the Employer's contribution to the pension plan, but
was attempting to learn what pension rights would become available
to certain laid-off employees. Its inquiry was of a preliminary charac-
ter but necessary in view of the fact that a substantial portion of the
Respondent's business was being liquidated and older employees with
many years of service were being terminated. The Union would need
to know which employees met at the existing standards set out in the
pension agreement in order to advise them and other laid-off employ-
ees whether they were eligible for the vested retirement benefits at
some subsequent date. Lacking this information, the Union would be
hampered in formulating proposals with respect to benefits for all laid-
off employees since it would not have the information available as to
the deferred pension rights of some of these employees. Thus, al-
though we respectfully disagree with the distinction drawn by the
court of appeals between costs and benefits of a noncontributory in-
surance plan, it is apparent in this case that, even accepting the court's
rationale, the Employer refused to furnish pertinent data which the
Union would need to ascertain the benefits of laid-off employees.
Although the Union had an opportunity to bargain for a substantial
period during the certification year, this occurred before all attempts
at further bargaining were frustrated by the Respondent's refusal to
turn over the requested pension information. Thus, the opportunity
for bargaining was significantly altered with Salem's operations were
liquidated and the number of production employees was reduced to
about 20 from a previous high of 130. It is understandable that the
Union's proposals for a new agreement would now have to be condi-
tioned on completely new factors, among them the probability that
most of the employees would now be finally terminated. The Re-
spondent's refusal, under these circumstances, to furnish the Union
3Sylvania Electric Products , Inc. v. N .LRB., 291 F 2d 128 ( C.A. 1), setting aside
127 NLRB 924
THE ELECTRIC FURNACE CO., ETC. 1081
with information necessary for a considered reappraisal of an im-
portant bargaining objective, the protection and determination of
pension rights, could be expected to bring all further negotiations to
a standstill. Although the Trial Examiner may have been correct in
concluding that the refusal to furnish the pension information was not
a factor in the possible loss of the Union's majority, it is obvious that
the refusal between September and January to supply the needed
data effectively prevented the Union from any opportunity to nego-
tiate a contract during the certification year, at a time when its ma-
jority status could not have been rebutted. The fact that pension
information was finally released to the Union in January, just a week
or so before the certification year ended, does not excuse the Em-
ployer's failure to furnish it previously. Obviously, its compliance
with its statutory obligation came too late for any meaningful nego-
tiations with the Union, particularly since the Respondent canceled a
scheduled bargaining meeting immediately upon failing its RM peti-
tion upon expiration of the certification year .4
We conclude, therefore, that the Respondent was required to furnish
the pension information which the Union requested in order to fulfill
its obligation to bargain with the Union in good faith. In failing to
do so for approximately 5 months, the Respondent violated Section
8(a) (5), and after it furnished the information, it further violated
Section 8(a) (5) by refusing to meet and negotiate with the Union on
and after February 9, 1961, despite its doubts at that time as to the
Union's majority status.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, which have been
found to constitute unfair labor practices, occurring in connection
with the operations of the Respondent described in the Intermediate
Report, 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.
THE REMEDY
Although we have found that the Respondent violated Section
8 (a) (5) and (1) of the Act by refusing to furnish the pension infor-
mation requested by the Union between September 8, 1960, and Jan-
uary 19, 1961, no purpose will be served by ordering the Respondent
to do so now in view of the fact that the information has been made
available to the Union. Having found, however, that the Union has
not an opportunity to bargain with the Respondent since the pension
4 Shelly & Anderson Furniture Mfg. Co., Inc., 130 NLRB 744, on which the Trial
Examiner relied , is not diapositive since we find that the Respondent did fail here to meet
its obligation to bargain with the Union before filing its RM petition
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information was furnished to it, we shall order the Respondent to
resume bargaining in good faith with the Union for the purpose of
reaching a collective-bargaining agreement, if the Union so requests.
We shall therefore order the Respondent to cease and desist from
engaging in the unfair labor practices found and in other like and
related conduct, and to take certain affirmative action designed to
effectuate the policies of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Electric Fur-
nace Co. and Salem Fabricating & Machine Co., Salem, Ohio, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Steelworkers of
America, AFL-CIO, District 26, Sub-District No. 5, as the exclusive
representative of its employees in the appropriate unit, by failing and
refusing to furnish to said labor organization information and data
concerning the deferred vested pension rights of the employees in the
appropriate unit. The appropriate bargaining unit is:
All production and maintenance employees, including watchmen,
general clerk in shipping department, and assistant foreman of the
Company in its Salem, Ohio, plant, excluding patternmakers and
patternmakers' apprentices, office and clerical workers, draftsmen,
professional employees, experimental department employees, guards,
and supervisors as defined in the National Labor Relations Act, as
amended.
(b) Refusing to bargain collectively with the exclusive represent-
ative of its employees by failing to meet and negotiate with it after
it had made available to the Union the pension information which it
had been obligated previously to furnish.
(c) In any like or related manner , interfering with the efforts of
the employees' exclusive representative to bargain collectively on
their behalf.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Steelworkers
of America, AFL-CIO, District 26, Sub-District No. 5, as the exclu-
sive representative of the employees in the appropriate unit, and
embody any understanding reached in a signed agreement.
(b) Post at its plant in Salem, Ohio, copies of the notice attached
hereto marked "Appendix." I Copies of such notice, to be furnished
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
THE ELECTRIC FURNACE CO., ETC. 1083
by the Regional Director for the Eighth Region, shall, after being
duly signed by the Respondent's representatives, be posted by them
immediately upon receipt thereof, and be maintained by them for a
period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Eighth Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
MEMBERS RoDGERS and BROWN took no part in the consideration of
the above Decision and 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 NOT refuse to bargain collectively with United Steel-
workers of America, AFL-CIO, District 26, Sub-District No. 5,
as the exclusive representative of our employees in the appropriate
unit, by failing and refusing to furnish to said labor organization
information and data concerning the referred vested pension
rights of the employees in the appropriate unit.
WE WILL NOT refuse to bargain collectively with the exclusive
representative of our employees by failing to meet and negotiate
with them after making available to the Union the pension infor-
mation which we were obligated previously to furnish.
WE WILL NOT in any like or related manner interfere with the
efforts of our employees' exclusive representative to bargain col-
lectively on their behalf.
WE WILL, upon request, bargain collectively with the above-
mentioned labor organization as the exclusive representative of
the employees in the appropriate unit, and embody any under-
standing reached in a signed agreement. The appropriate bar-
gaining unit is :
All production and maintenance employees, including
watchmen, general clerk in shipping department, and assist-
ant foreman of the Company in its Salem, Ohio, plant, ex-
cluding patternmakers and patternmakers' apprentices, office
and clerical workers, draftsmen, professional employees, ex-
perimental department employees, guards, and supervisors as
defined in the National Labor Relations Act, as amended.
,1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or refrain from becom-
ing or remaining members of the above named Union or any other
labor organization, except to the extent this right may be affected by
an agreement in conformity with Section 8(a) (3) of the Act.
THE ELECTRIC FURNACE CO. AND SALEM
FABRICATING & MACHINE CO.,
Employers.
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.
Employees may communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio,
Telephone Number, Main 1-4465, if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by the United Steelworkers of America, herein called the
Union, the General Counsel of the National Labor Relations Board by the Regional
Director for the Eighth Region, issued complaints dated January 6 and May 5, 1961,
against The Electric Furnace Co. and Salem Fabricating & Machine Co., herein called
the Respondent, alleging that the Respondent violated Section 8(a)(1) and (5)
and Section 2(6) and (7) of the Act, as amended.
With respect to the unfair labor practices alleging violations of the Act, the com-
plaints allege, in substance, that the Respondent refused to furnish the Union with
certain information regarding an employees' pension fund and that the Respondent
unlawfully refused to bargain collectively with the Union. Respondent's answer
admits certain jurisdictional and factual allegations of the complaint, but denies
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held in Salem, Ohio, on June 20 and 21, 1961,
before Trial Examiner Henry S. Sahm. All parties were represented by counsel and
were afforded full opportunity to participate in the hearing, to introduce relevant
evidence bearing on the issues, to argue the issues orally upon the record, and to
file briefs and proposed findings of fact and conclusions of law. Briefs were filed
by the General Counsel and the Respondent on August 14, 1961. During the course
of the hearing various motions were made by the parties and after the conclusion
of the hearing, the counsel for the General Counsel and counsel for the Respondent
moved to correct the transcript in certain specified details which will be found in
the record of this proceeding. All other motions are disposed of in this Intermediate
Report.
Upon the entire record in this case, upon consideration of the arguments and
motions of counsel, including the briefs filed by the parties and citations of cases
alleged to be dispositive of the issues in this proceeding, the Trial Examiner makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
It is conceded that the Respondent Company, The Electric Furnace Co. (Salem
Fabricating & Machine Co. is no longer in existence), an Ohio corporation, with
principal offices in Salem, Ohio, is engaged in the fabrication, manufacturing, sale,
and distribution of parts for electric furnaces. Respondent annually ships products
valued in excess of $50,000 directly to points outside the State of Ohio. It is found,
therefore, that the Respondent is engaged in commerce within the meaning of the
Act, and it is subject to the jurisdiction of the Board.
THE ELECTRIC FURNACE CO., ETC.
II. THE LABOR ORGANIZATION INVOLVED
1085
It is admitted and found that the Charging Union is a labor organization as defined
in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Union was certified as bargaining agent for all production and maintenance
employees at Respondent's plant in 1950. Commencing in January 1951, the Union
and The Electric Furnace Co., hereinafter referred to interchangeably as the Re-
spondent and the Company, were parties to a succession of collective-bargaining
contracts fixing conditions of employment for certain of Respondent's personnel.
One of the provisions of said collective-bargaining contract was a pension plan which
was established by the Respondent on December 10, 1951, effective January 1, 1951,
and wholly financed by it.
Salem Fabricating & Machine Company, incorporated on January 2, 1959, was a
wholly owned subsidiary of The Electric Furnace Co., with its place of business in
Salem, Ohio, where it manufactured and fabricated parts for electric furnaces.
Upon its incorporation, Salem took over the manufacturing operations of Electric
Furnace and assumed Electric Furnace's contract obligations under the collective-
bargaining agreement with the Union which included the pension plan referred to
above.
The last in this series of contracts between the parties was effective from December
15, 1956, until November 14, 1959. The unit covered by the contract covered the
following employees:
All production and maintenance employees, including watchmen, general
clerk in shipping department, and assistant foreman of the Company in its
Salem, Ohio plant, excluding patternmakers and patternmaker apprentices, office
and clerical workers, draftsmen, professional employees, experimental depart-
ment employees, guards, and supervisors as defined in the National Labor
Relations Act, as amended.
There were approximately 130 employees in the above-described unit at the
time Salem came into existence. Subsequently, due to economic reasons, employees
comprising said unit were laid off so that at the time Salem discontinued its manu-
facturing operations on August 18, 1960, the original complement of 130 workers
in the unit had been reduced to approximately 23 employees. Of these 23 employees,
approximately 13 of them had never been in the original bargaining unit nor were
they members of the Union, as they were former supervisors and clerical employees
who were transferred to the production force comprising the bargaining unit when
economic conditions compelled the Company to drastically reduce the number of
workers employed throughout the plant. These remaining 23 workers who were
still employed at the time Salem discontinued operations on August 18, 1960, were
again employed by the parent corporation, the Electric Furnace Co.
When the last contract expired on November 14, 1959, an election was held on
January 18, 1960, which the Union won and it was again certified as bargaining
agent.' After the Union was again certified on January 25, 1960, negotiations be-
tween Salem and the Union commenced immediately thereafter and continued during
the months of February, June, August, and September, 1960, for the eventual pur-
pose of consummating and signing a new collective-bargaining contract.
However, when Salem went out of business on August 18, 1960, Electric Furnace
assumed Salem's obligations under the collective agreement and continued to recog-
nize that the Union was still the certified bargaining representative of those Salem
employees who were reemployed by Electric Furnace.
The first bargaining session, after Salem became defunct and Electric Furnace
assumed its obligations under the contract, was held on September 8, 1960. One
of the matters which was discussed at this September 8 meeting was the pension
plan established in 1951 by the Respondent Company covering all of its employees,
including those in the bargaining unit. The Union at this meeting requested a
copy of the pension plan, pension trust agreement, and certain other information.
The Company agreed to furnish some of the information but refused to furnish
all the information requested by the Union.2 The meeting foundered on this
'At the time of the election and the Union's certification, although all of the original
bargaining unit of 130 employees were eligible to vote, there were approximately 100 of
them In a laid-off status due to lack of work.
2 At that meeting, the Union requested a copy of the pension plan and the pension trust
agreement and the names of individuals who may by reason of their age and service with
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue.3 When the Company refused the Union's request for certain information
regarding the pension plan at the September 8 bargaining session, the Union
thereupon filed a charge on October 21, 1960, and a complaint was served upon the
Respondent on or about January 7, 1961.
On January 24, 1961, 2 weeks after the complaint issued, the Respondent furnished
the Union with all the information it had originally requested: namely, a copy of the
pension plan and a list of individuals whose employment had been terminated by Re-
spondent on or before August 18 , 1960 (the date Salem went out of business), con-
taining their respective dates of birth and their average monthly earnings during the
previous 10 years of their employment with Salem and/or Electric Furnace.
When the information with respect to the pension fund was furnished on
January 24, 1961, the charge in Case No. 8-CA-2272 was withdrawn by the Union
with the approval of the Regional Director who , in turn, dismissed the complaint
on the same day. No settlement agreement was entered into at the time the complaint
was dismissed.
On January 25, 1961, the Union's certification year expired as representative of the
Respondent's employees in the above-described bargaining unit. On January 31,
1961, Respondent filed a petition with the Board alleging that a question existed
as to the majority status of the Union. On February 8, 1961, the Regional Director
issued a notice of hearing and scheduled a hearing for February 20, 1961 (Case
No. 8-RM-261) with respect to the Union's majority status. On May 5, 1961, the
Regional Director wrote to the Respondent Company stating that because he was
,issuing a complaint that same day "further proceedings [in Case No. 8-RM-261] are
not warranted at this time" and that the representation petition filed by Respondent in
this matter was being dismissed.
In the meantime, the Union had written the Company on January 9, 1961, request-
ing that negotiations be resumed on terms and conditions for a new contract. A
series of letters then were exchanged by the parties and by letter dated January 117,
the Company tentatively agreed to a bargaining meeting on February 10, 1961.
On February 1, 1961, the day after the Company's representation petition was filed,
R. E. Coe, Respondent's vice president, wrote a letter to the union representative, E.
J. Hilland, in which Coe stated to Hilland that "you may see little point to a meeting
until .the question [of the Union's majority status] is resolved. If you agree that a
meeting can serve no useful purpose until the majority status of the Union has been
settled, J would suggest that we do not attempt at this time to schedule a meeting."
The Union replied on February 6, requesting again that the bargaining meeting be
held on February 10.
On February 9, the Respondent Company wrote the Union as follows:
We have been notified that a hearing on our petition to the National Labor
Relations Board asking for a determination whether the union should continue
as bargaining agent for our production and maintenance employees has been
scheduled for 10:30 a.m., 'February 20, 1961, in Council Chambers in the
City Hall, Salem, Ohio.
We believe that by setting .the date of a hearing, the Board has found that a
substantial question of representation exists, and since majority status of the
union is a prerequisite to bargaining, it follows that it would be improper for
us to meet and to negotiate with you on terms and conditions of a collective
bargaining agreement while there is real doubt of your now representing a
majority of the bargaining unit employees.
Therefore, we are informing you that we feel we must decline to meet with
you for the purpose of resuming negotiations while the question of representation
is being determined.
On February 10 and March 6, the Union again filed a charge and amended charge
and the Regional Director issued a complaint on May 5, 1961 (Case No.
8-CA-2355), alleging that Respondent since February 9 ,1961, has refused to bargain
with the Union. The February 10 charge alleged in part, that the Respondent re-
fused to meet with the Union "on the spurious ground that a question of representa-
tion exists.," The amended charge of March 6 alleged, in substance, that the Com-
pany "since on or about September 3, 1960, and at all times thereafter , . . . has
Electric Furnace and Salem, become entitled to deferred vested retirement pension bene-
fits. The following day, the Company furnished a list of those eligible for pensions but
refused to give the Union copies of the pension plan and pension trust agreement.
31t is uncontradicted, that with one exception, which occurred in 1958, the Union had
never requested any information concerning the pension plan from its establishment in
December 1951 , until the negotiation meeting of September 8, 1960.
THE ELECTRIC FURNACE CO., ETC. 1087
refused to bargain collectively with the Union." In paragraph 10 of the complaint
issued in Case No. 8-CA-235'5, it is alleged Respondent has refused to bargain with
the Union since February 9, 1961. On the same day that the complaint in Case No.
8-CA-2355 issued, .the Regional Director filed an "Amended Complaint and Notice
of Hearing" in Case No. 8-CA-2272. In this amended complaint, it is alleged as
follows:
14(A) On January 6, :1961, the Regional Director issued a Complaint and
Notice of Hearing in the above-captioned matter.
(B) On or about January 19, 1961, Attorney for Respondent authorized the
Regional Director to release to the Union a copy of the above-mentioned
Pension Trust Agreement, a copy of the plan to which said Pension Trust
Agreement referred and a list of individuals whose employment has been
terminated by Respondent on or before August 16, 1960, containing their respec-
tive dates of birth and their average monthly earnings during the previous 10
years of their employ with Salem and/or Electric Furnace.
15. On or about January 24, 1961, the charge in the above-captioned matter
was withdrawn by the Union, said withdrawal being approved by the Regional
Director on that date.
16. On or about January 24, 1961, the Regional Director dismissed the Com-
plaint in the above-captioned matter.
17. Simultaneously with the issuance of this Amended Complaint, the under-
signed Regional Director is issuing an order retracting his approval of the with-
drawal of the charge herein and rescinding his dismissal of the complaint. In
said order the undersigned has reinstated the charge and Complaint heretofore
issued.
On the same day, May 5, 1961, the Regional Director issued an order consolidating
Cases Nos. 8-CA-2272 and 8-CA-2355 for hearing.
The Respondent's answer to the consolidated complaint denies it committed any un-
fair labor practices and alleges that the Regional Director had no authority to issue
an order retracting his approval of the charge and rescinding his dismissal of the
complaint and reinstating said charge and complaint in Case No. 8-CA-2272. Re-
spondent's answer further contends that this action on the part of the Regional Di-
rector "is a pretext to revive the charges filed by the Union in October 1960" and
that said charge has "long since -become moot."'
Discussion and Conclusions
The General Counsel initially contends that the refusal of the Respondent Com-
pany to furnish from September 8, 1960, to January 1961, the pension information to
the Union violated Section 8(a) (5) of the Act. Without deciding whether the Union
was entitled to the particular pension data which it requested on September 8, 1960,4
the fact remains that the Respondent did furnish all the requested information on
January 24, • 1961, whereupon both the General Counsel and counsel for the Union
approved withdrawal of the charge, and dismissal of the complaint which the General
Counsel in paragraph numbered 14 of his amended complaint (Case No. 8-CA-2272)
so admits 5 It would seem, moreover, that the General Counsel's contention that the
Respondent's refusal to furnish this pension fund information to the Union was an
unfair labor practice, which caused the Union's majority status to be dissipated,
is obviously without merit as there is not a scintilla of evidence to substantiate this
nor is there any proximate relationship between the asserted cause and the alleged
consequence. Therefore, it will be recommended that this allegation of the com-
plaint be dismissed.
The General Counsel also argues that "whatever effect the furnishing of the
information had no the bargaining circumstances between the Employer and the
4 See Sylvania Electric Products, Inc v. N L.R B., 291 F. 2d 128 (C.A. 1), where the
court held the employer need not furnish the union bargaining agent information on an
employee group insurance program where the costs of the program are financed entirety
by the employer, as is the situation in this proceeding. In N L R B. v. John S. Swift
Company, Inc., 277 F 2d 641 (C.A. 7), the court held an employer violated Section
8(a) (5) by refusing to furnish a "breakdown as to the costs of its existing health and
welfare plan " However, the Swift case is distinguishable from the instant case and
Sylvania because in Swift the plan required contributions by the employees to pay the
premiums.
i See Jackson Manufacturing Company, 129 NLRB 460, 461, 473-476, with respect to
whether the Regional Director was estopped from issuing his order retracting his approval
of the charge and rescinding his dismissal of the complaint
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union vanished with the Employer's subsequent refusal to meet with the Union."
This, of course, depends on whether the ground asserted by the Respondent for re-
fusing to meet with the Union for the purpose of bargaining (pendency of a rep-
resentation petition) is a legally valid reason.
Whether, in any given case, the employer is legitimately or illegitimately moti-
vated in asking for an election, whether he sincerely or insincerely expresses doubt as
to the Union's status, depends in the final analysis upon all the facts and circumstances
of the particular case .6 There is no simple yardstick by which a good- or bad-faith
determination can be made? The Trial Examiner is perforce compelled to weigh
all the evidence in this case, including the sequence of events, before making a find-
ing of good- or bad-faith refusal to bargain. The burden of proving that the
Respondent's refusal to bargain with the Union was motivated by bad faith rests with
the General Counsel.8
These principles are further amplified in the Board's decision in Shelley & Anderson
Furniture Mfg. Co., 130 NLRB 744, which has direct application to the case at bar.
In that case, the employer recognized the union in September 1958, and entered into
a contract which expired on June 1, 1959. The day following expiration of the con-
tract, the employer filed a representation petition. The union filed a charge alleging,
inter alia, a refusal by the employer to bargain. The Board in dismissing
the complaint held that the petition was filed at an appropriate time and that it was
immaterial whether the employer "honestly" concluded that dissatisfaction with the
union had, in fact, dissipated the union's majority. The Board stated:
In such a case, it would have been beyond the Board's province to pass on the
Employer's motivation for filing its petition. Even if the Employer did not have
a good-faith doubt of the Union's continued majority, its petition would have
been justified either on the ground that it was faced with a demand for con-
tinued recognition, or that it preferred to deal with a certified bargaining
representative.
.After June 1, when the agreement expired, the Respondent was again
free to file a representation petition since the Union still demanded continued
recognition. The fact that the Respondent filed its petition after the expiration
of the agreement does not convert its conduct between April 20 and June I
into an unlawful refusal to bargain. [Emphasis supplied.]
In deciding whether the filing of a petition at an appropriate time constitutes
a violation of Section 8(a),(5), we do not consider as a relevant issue whether
Respondent "honestly" concluded that the dissaffection with the Union which
had been reported to it had, in fact, dissipated its previous majority. The essen-
tial elements are that the petition was filed at an appropriate time; that neither
before nor after such filing did the Respondent fail to meet its obligation to
bargain with the Union; and that it never attempted to use such delay as did
occur for the purpose of undermining the union's status.
Moreover, it would seem evident that when the Respondent filed a representation
petition and the Regional Director issued a formal notice of hearing that this indi-
cated he believed there was a real question whether the Union represented a majority
of the employees in the designated bargaining unit.9 Authority for this conclusion
is the case of St. Louis Independent Packing Co., Div. of Swift & Co. v. N.L.R.B.,
291 F. 2d 700 (C.A. 7), in which the court stated: "Where the Board, after its
investigation, orders a representation election . . . a real question of representation
must be said to exist." In other words, the act of issuing a notice of hearing was
tantamount to an interlocutory determination by the Regional Director that a real
question of representation existed and that the filing of the petition by Respondent
was sufficiently meritorious to warrant the representation question being noticed for
formal hearing.io
NNLRR.B. v. Truitt Mfg. Co., 351 U.S. 149, 153-154.
9 N L.R B. v. American National Insurance Co, 343 U.S. 395, 410.
'Emma Ga, lbei t et at, d/b/a A L. Gilbert Company, 110 NLRB 2067, 2069-2071;
Coronet Manufacturing Company. 133 NLRB 641
U See Section 9 (c) of the Act, § 102 63 of the Board's Rules and Regulations and Sec-
tion 101 20 of the Board's Statements of Procedures, Series 8 . Also, Fourth Annual Re-
port, p. 74; Fifth Annual Report, p. 54; Eighth Annual Report, p. 44; Eleventh Annual
Report, pp. 9-13; 0. D. Jennings & Company, 68 NLRB 516, 518.
10Henry Heide, Inc, 107 NLRB 1160, 1163, enfd 219 F. 2d 46 (C.A. 2), cert denied
349 U. S. 952 . See The Hoover Company v. N.L R.B., 191 F. 2d 380, 385, 386 (C A. 6) ;
Shea Chemical Corporation, 121 NLRB 1027, 1029.
THE ELECTRIC FURNACE CO., ETC. 1089
When Respondent received notice from the Regional Director on February 9, 1961,
that a formal hearing on its petition would be held, it was reasonable for Respondent
to assume that the Regional Director's investigation had satisfied him that there was
cause to believe that a real question of representation existed." It was then incum-
bent for the Respondent to assume a posture of complete neutrality which encom-
passed not bargaining with the Union until a final determination was made. If
Respondent had acceded to the Union's request to enter into bargaining negotiations,
it would have been acting at its peril and would have assumed the risk of being found
in violation of the act, regardless of its good faith, if the Board were to ultimately
find that a question of representation really existed.12 The Respondent, therefore,
was privileged to refrain from continuing collective-bargaining negotiations because
of the Regional Director's action and its good-faith doubt of the Union's continuing
majority, when it so notified the Union on February 10, 1961.13
A correlative legal incidence of the Regional Director's act of noticing the case
for hearing and so notifying Respondent, was to place his imprimatur of good faith
on Respondent's doubt that the Union represented a majority of the employees in the
unit on January 31, 1961, because Respondent knew when it received such notice
that the Regional Director was administratively satisfied, after his investigation, that
Respondent's petition was adequate to raise a real question of representation. This,
as a matter of law, is a valid reason for the Respondent's refusal to bargain with the
Union on or about February 9, 1961.14
Respondent's puissant good-faith doubt as to the Union's majority status is further
demonstrated by the testimony at the hearing of 20 of the 23 employees (who were all
that remained of the original designated unit of 130 employees), that they did not
desire to be represented by the Union.15 If, nevertheless, the Respondent were to
have executed a contract with the Union under such circumstances, it would have
committed an unfair labor practice as an employer cannot recognize a union selected
by a minority of his employees "thereby impressing that [union] upon the noncon-
senting majority." 16
Albeit, at the end of the certification year, a presumption of the union's majority
status continues, this presumption becomes rebuttable, and the employer can, without
violating the Act, refuse to bargain with the union on the ground that it doubts the
union's majority, provided that the doubt is in good faith.17 In the instant proceeding
there is ample probative evidence, explicated above, of reasonable cogent grounds
for Respondent having a reasonable and preexisting good-faith doubt as to the Union's
majority status when it so notified the Union on February 10, 1961.
It is recommended, therefore, that the complaint charging Respondent with a re-
fusal to bargain be dismissed in its entirety.1$
11 See NLRB. v. Swift & Company, 294 F. 2d 285 (CA. 3).
13 N L R B. v. National Container Corp, 211 F. 2d 525, 535 (C.A. 2). Cf. Old King
Cole, Inc. v NL.R.B., 260 F. 2d 530, 532 (CA. 6).
13 North Electric Company, 129 NLRB 675; National Carbon Division, Union Carbide
and Carbon Corporation and National Carbon Company, Inc, 105 NLRB 441.
1s North Electric Company, supra
15 As of the time of the hearing in June 1961, none of these 20 employees who testified
were currently paying dues to the Union.
le International Ladies' Garment Workers' Union, AFL-CIO v. N L R B., and Bernhard-
Altmann Texas Corp., 366 U.S. 731, where the court held it to be unlawful to bargain
with a union representing a minority of the employees even though the employer had a
good-faith belief that the union represented a majority of his employees. Nor did the
Supreme Court regard as relevant the fact that when the formal contract was signed, the
union actually did represent a majority. The critical date is when recognition is granted.
See also Signal Oil and Gas Company, 131 NLRB 1427.
14 Ray Brooks v. N.L.R.B, 348 U.S 96; Celanese Corporation of America, 95 NLRB
664, 673.
13 Stoner Rubber Company/, Inc., 123 NLRB 1440, 1444, 1445; Celanese Corporation of
America, 95 NLRB 664, 672; N.L R B v. National Container Corp, 211 F 2d 525, 536
(C.A. 2) ; Ray Brooks v. N.L.R.B , 348 U.S. 96, 104; Crowley's Milk Company, Inc
(Paterson Division), 88 NLRB 1049, enfd. 208 F 2d 444 (C A 3). In NLRB v. Globe
Automatic Sprinkler Company of Pennsylvania, 199 F. 2d 64 (C A. 3), where the company
ceased negotiations with the certified union when employees in the bargaining unit filed
a decertification petition, 3 weeks prior to the expiration of the certification year, the
court dismissed the complaint.
649856-63-vol. 137-70