The Mengel Co.

National Labor Relations Board - Board Decisions

Nov 23, 1948

80 N.L.R.B. 705 (N.L.R.B. 1948)

In the Matter of THE MENGEL COMPANY, FIBRE CONTAINER DIVISION
and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
LOCAL 2866, A. F. OF L.
Case No. 9-C-2491.-Decided November '23, 1948
DECISION
AND
ORDER
On January 13, 1948, Trial Examiner Maurice M. Miller 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 Inter-
mediate Report attached hereto.' Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief z
The Board 3 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
' Section 8 (1) and ( 5) of the National Labor Relations Act, which the Trial Examiner
found were violated , are continued in Section 8 (a) (1) and (a) (5) of the Act as amended
by the Labor Management Relations Act, 1947.
2 After the Trial Examiner issued his Intermediate Report, the Respondent moved the
Board for leave to introduce further testimony in order to show that the following events
have occurred since the hearing was held in this case : ( 1) all the employees in the bargain-
ing unit became members of Independent Corrugated Boxmakers Union ; (2) the Respondent
and the Independent executed a collective bargaining agreement covering employees in the
unit; and ( 3) United Brotherhood of Carpenters and Joiners of America , Local 2866,
A. F. of L., lost all interest in the employees involved , and the case has therefore become
moot. The Respondent 's motion is denied.
Our decision herein is made upon the assumption that the United had lost its numerical
majority at the time of the commission of the unfair labor practices ; and our views and
decision with respect thereto would not be altered by proof that the Independent was desig-
nated by all employees in the unit , and that it had entered into contractual relations with
the Respondent . N. L. R. B. v. Franks Bros. Co., 321 U. S. 702; N. L. R. B. v. Clinton E.
Hobbs Co., 132 F. (2d) 249, 252 (C C. A. 1) , N L. R. B v Worcester Knitting Mills Corp.,
October 4, 1948, 170 F. (2d) 13 (C. A. 1), cert den 336 U. S. 903. We note, moreover, that
the allegation that the United has lost interest in the Respondent 's employees appears
merely as a conclusion derived from the other allegations made by the Respondent ; and we
further note that we have not been informed by the United that it is not now interested
in this proceeding.
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -man panel consisting
of the undersigned Board Members [Chairman Herzog and Members Houston and Gray].
80 N. L. R. B., No. 110.
705
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief of the Respondent, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner,' except that we do
not adopt that portion of the Trial Examiner's recommendations
which suggest a time limitation upon the Respondent's duty to bar-
gain with the United.
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 that the Respondent, The Mengel
Company, Fibre Container Division, and its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Brotherhood of
Carpenters and Joiners of America, Local 2866, affiliated with the
American Federation of Labor, as the exclusive representative of all
production and maintenance employees at its Louisville, Kentucky,
Fibre Container Plant, except for office employees, superintendents.
foremen, and all other supervisors as defined in the Act;
(b) Interfering in any other manner with the efforts of United
Brotherhood of Carpenters and Joiners of America, Local 2866, affil-
iated with the American Federation of Labor, to bargain collectively
on behalf of employees in the aforesaid bargaining unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with United Brotherhood of
Carpenters and Joiners of America, Local 9866, affiliated with the
American Federation of Labor, as the exclusive representative of the
employees in the aforesaid bargaining unit, with respect to rates of
pay, wages, hours of employment, and other terms or conditions of
employment, and if an understanding is reached, embody such under-
standing in a signed agreement;
(b) Post at its office and places of business in Louisville, Kentucky,
copies of the notice attached hereto and marked "Appendix A." $
4 The Trial Examiner's finding and conclusion of law with respect to the appropriate unit
is hereby amended to delete the words "supervisory employees with authority to hire, pro-
mote, demote, discharge, discipline, or otherwise effect changes In the status of employees,
or effectively recommend such action," and to substitute therefor the words "supervisors as
defined in the Act." As so amended, the Trial Examiner's unit finding and conclusion of
law are hereby approved
' In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall he inserted before the words, "A DECISION AND ORDER," the words, "DE-
CREE OF TILE UNITED STATES COURT OF APPEALS ENFORCING "
THE MENGEL COMPANY 707
Copies of said notice , to be furnished by the Regional Director for the
Ninth Region, shall , after being duly signed by a representative of
the Respondent , be posted by the Respondent immediately upon receipt
thereof, and maintained by it for sixty ( 60) consecutive days there-
after, 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 Ninth Region in writing,
within ten ( 10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Purusant 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 BARGAIN collectively, upon request, with UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL
2866, affiliated with the AMERICAN FEDERATION OF LABOR, as the
exclusive representative of all employees in the appropriate unit
described below, with respect to rates of pay, wages, hours of
employment or other conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed
agreement. The appropriate unit is :
All production and maintenance employees at our Louisville,
Kentucky, Fibre Container Plant, except for office employees,
superintendents, foremen, and all other supervisors defined in the
Act.
WE WILL NOT, in any manner, interfere with the efforts of
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
LOCAL 2866, affiliated with the AMERICAN FEDERATION OF LABOR,
to bargain collectively with us as the exclusive representative of
employees in the appropriate unit described above.
THE MENGEL COMPANY, FIBRE CONTAINER DIVISION,
Employer.
Dated------------------ By-----------------------------------
(Repreeeatattve ). ( Title)
This notice must remain posted for sixty (60) days from the date
of posting and must not be altered, defaced, or covered by any other
material.
817319-I9-vol. 80--46
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Clifford L. Hardy, for the Board.
Messrs. Janes U. Smith, Jr., and Lyman C. Martin, of Louisville, Ky., for the
respondent.
Messrs. Stanley Williams and William Beller, of Louisville, Ky., for the United.
STATEMENT OF THE CASE
Upon amended charges duly filed by the United Brotherhood of Carpenters
and Joiners of America, Local 2866, affiliated with the American Federation of
Labor, herein designated as the United, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Ninth Region (Cincin-
nati, Ohio), issued its complaint against The Mengel Company, Fibre Container
Division, herein designated as the respondent, alleging that the respondent did
engage and has continued to engage in unfair labor practices affecting commerce,
within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.' Copies of
the complaint, the first amended charge and notice of hearing thereon were duly
served upon the respondent and United.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that the respondent, on or about April 4, 1947, refused and at all times there-
after has continued to refuse to bargain collectively with United as the exclusive
representative of its employees in an appropriate unit, although United has been
entitled to recognition as such an exclusive representative since September 6,
1946; and (2) that the respondent, by the course of conduct aforesaid, interfered
with, restrained and coerced its employees in the exercise of rights guaranteed
by the Act.
Thereafter, on July 8, 1947, the respondent filed an answer, in which it admitted
certain jurisdictional allegations of the complaint and further admitted the
appropriateness of the bargaining unit described therein, but denied that United
had been the exclusive representative of the employees in the unit described-
within the meaning of Section 9 (a) of the Act-at all times since September 6,
1946, and further denied the commission of any unfair labor practices. It was
further alleged-by way of affirmative defense-that United, after intensive
organizational efforts, had been designated by a majority of the employees in
the appropriate unit at the respondent's Fibre Container Division as their collec-
tive bargaining representative, in a consent election by secret ballot under the
auspices and supervision of the Board; that the union was subsequently "certi-
fied" by the Regional Director as the exclusive representative of the aforesaid
employees ; that representatives of United and the respondent met thereafter
to bargain collectively, and did so in good faith ; that a contract was executed
on November 1, 1946, to govern the wages, hours and working conditions of the
employees in the appropriate unit for the 6-month period which was due to
expire on April 30, 1947; that the Independent Corrugated Boxmakers Union,
a labor organization-designated herein as the Independent-began a counter
campaign among employees in the Fibre Container Division during the life of
the aforesaid contract; that the respondent was advised in March of 1947, before
1These provisions of the Act have been retained as Section 8 (a) (1) and 8 (a) (5) of
the Act, as amended by the Labor Management Relations Act of 1947, Public Law 101, 80th
Congress, 1st Session.
THE MENGEL COMPANY 709
its contract with United had expired, that the Independent currently represented
a majority of the employees in the Fibre Container Division ; that the respondent
became convinced that this was in fact the case ; that the Independent, in the
opinion of the respondent, has continued to represent and does represent a ma-
jority of the employees in the bargaining unit agreed upon as appropriate at
the Fibre Container Division ; that the respondent, therefore, can no longer law-
fully bargain or negotiate with United in regard to the wages, hours or working
conditions of the employees in the aforesaid unit ; that the respondent has
expressed its willingness to resolve the question of representation, created by
the demands of the Independent, in a consent election under the auspices and
supervision of the Board, but that representatives of the Board have arbitrarily
and capriciously refused to take the action requested by the respondent; that
the claims of United and the Independent have placed the respondent in a
dilemma ; and that the situation of the respondent fully justifies its refusal to
negotiate with United in regard to a new agreement, after the expiration date
of the 6-months contract noted.
Pursuant to notice, a hearing was held-in Louisville, Kentucky-on July 28
and 29, 1947, before the undersigned, Maurice M. Miller, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board was represented by counsel,
the respondent by its counsel and general manager, and the United by counsel
and a business representative. All of the parties participated, and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence pertinent to the issues. Motions to strike the evi-
dence with respect to activity on the part of United at the Furniture Division
of the respondent, and the organization of the Independent, were presented by
counsel for the Board ; and a motion to dismiss the complaint was presented by
counsel for the respondent. The decisions of the undersigned were reserved,
and the motions are disposed of by the findings of fact, conclusions of law and
recommendations embodied in this report. At the close of the testimony, also,
counsel for the Board presented a motion to conform the pleadings to the proof,
with respect to formal matters. The motion was granted. Counsel presented
oral argument at the close of the case-and the parties were advised that they
could file any briefs with the undersigned within 5 days thereafter. No briefs
have been received.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Mengel Company, hereinafter called the respondent, is a corporation duly
licensed under the laws of the State of New Jersey, which maintains its principal
office in Louisville, Kentucky. The respondent is engaged in the manufacture
of various wood products and operates three divisions; a container division, a
furniture division and a plywood division. The Louisville plant of the Fibre
Container Division, at which the respondent manufactures boxes and containers
made of paper and fibre, is the only operation of the firm involved in the instant
case. All, or approximately all, of the raw materials used at the plant are
secured outside the State; the value of the materials used is estimated in the
neighborhood of $2,000,000 per year. Approximately 50 or 55 percent of the fin-
ished products manufactured in the plant are utilized in commerce ; the products
thus utilized are valued at approximately $1,500,000 per year.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answer, and at the hearing, the respondent admitted that it was engaged
in "commerce" within the meaning of that term as defined in the Act.
II. THE ORGANIZATIONS INVOLVED
United Brotherhood of Carpenters and Joiners of America, Local 2866,
A. F. of L., is a labor organization, affiliated with the American Federation of
Labor, which admits to membership employees of the respondent. The Inde-
pendent Corrugated Boxmakers Union, Local No. 1, which was organized in
1947 specifically for the purpose of dealing with the respondent in regard to
the grievances, wages, pay rates,-hours of employment and working conditions
of employees at the Fibre Container Division, is'nlso a labor organization, within
the meaning of that phrase as defined in the Act.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit; representation by the United of a majority therein
On a date in the middle of 1946, which does not appear specifically in the
record, United began a campaign to organize employees in the Fibre Container
Division of the respondent? Shortly thereafter, on July 24, 1946, William Beller,
the president of United, dispatched a letter to the respondent in which it was
claimed that the union had been authorized by a majority of the employees in
the plant to represent them in negotiations with respect to their wages, hours
and conditions of employment. The union, accordingly, requested a conference
to discuss its certification and recognition by the respondent. The respondent's
reply, by Dulany Logan, its vice president-fitted on the 26th of .July-named a
date for the conference which was agreeable to the Union ; and on August 9, 1946,
after the conference, the parties executed and dispatched to the Regional Office
of the Board at Cincinnati, Ohio, it consent election agreement and covering
letter, in which the parties jointly designated the individuals who would act
as their representatives and observers in the consent election to be conducted
under the auspices and superv)siou of the Board.
Upon the receipt of advice that the agreement contained provisions which were
not acceptable to the Regional Office, representatives of United and the respond-
Ent journeyed to Cincinnati on August 13, 1046; at that time, in the office of the
Board, they executed a second consent election agreement, which was approved
by the Regional Director. It provided for an election on the premises of the
respondent, to be held on August 28, 1946, and described the appropriate col-
lective bargaining unit agreed upon by the parties as follows :
All production and maintenance employees at the Employer's Louisville,
Kentucky Fibre Container Plant (which plant is located at 1111 Zane St.,
Louisville, Kentucky), except off,,e employees, superintendents, foremen, and
and all other supervisory employees who have authority to hire, promote,
demote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action.
2 At the time , according to the record , United was already the recognized representative
of employees at the Furniture and Plywood Divisions of the respondent , in Louisville.
Its most recent agieement with the respondent, on behalf of these employees , had been
negotiated on or about March 1, 1946-shortly before inception of the events with which
the instant case is concerned.
THE MENGEL COMPANY 711
The election was held as scheduled. There were 152 eligible voters, of whom
149 cast ballots; 76 employees voted for representation by the United, and 73
of the votes were cast in opposition. There was no objection to the election ;
representatives of the union and the respondent executed the usual certification
with respect to the conduct of the election, and accepted forthwith a tally of bal-
lots which indicated that a majority of the valid votes had been cast in favor
of representation by the United.
On August 30, 1946, the union presented its initial proposals to the respondent
in the form of a draft agreement, and requested a conference to discuss the
matter. Thereafter, on September 6, 1946, the parties received a consent de-
termination of representatives from the Regional Director, which contained
the official declaration that a majority of the valid votes in the consent election
had been cast in favor of representation by the United and stated that the
organization aforesaid was, in fact, the exclusive representative of all the
employees in the appropriate collective bargaining unit.
Conclusions
The complaint alleges that the unit agreed upon as appropriate in connection
with the consent election is, in fact, a unit appropriate for collective bargaining-
and the answer of the respondent admits the appropriateness of the unit. The
testimony received in the instant case, however, indicated the existence of a
doubt on the part of the Board and the union with respect to the status of group
leaders ; there was some suggestion that the individuals thus employed were super-
visors within the meaning of that term as defined in the agreement of the parties.
While some question does appear to exist with respect to the authority of these
individuals to effectuate transfers and assign the work within the departments
to which they are assigned, and their authority to recommend personnel action
in other respects, the undersigned is not convinced, upon the record as a whole,
that group leaders in the employ of the respondent at its Fibre Container Divi-
sion possess sufficient supervisory authority to warrant their exclusion from a
collective bargaining unit of production and maintenance workers.' In any event,
however, it clearly appears that individuals employed in this capacity had, in
fact, been designated as eligible voters in the consent election, and that two of the
individuals designated by the union as observers in connection with the election-
,Chester Longenbohn and Anthony Welsh-were themselves group leaders at
the time. In the letter of August 9th, which accompanied the abortive consent
election agreement, it was jointly stated by the parties that:
The Mengel Company and United Brotherhood of Carpenters and Joiners
of America, Local 2866, have agreed, and do hereby represent to you, that
none of the above-named persons are supervisory employees of The Mengel
Company, and that all of the above-named persons are acceptable both by the
Company and the Union to act as authorized observers .. .
Under the circumstances, the agreement of the parties with respect to the status
of group leaders, in connection with the consent election, would seem to dispose
of any question with respect to their alleged authority as supervisory employees ; `
and counsel for the Board in the instant case did finally state, in oral argument,
that he did not contest the propriety of the unit agreed upon in connection with
the consent election.
8 Cf. Matter of Fred H Cole d/b/a Cole Instrument Company, 75 N. L. R. B. 348.
4 Matter of Mississippi Valley Structural Steel Company , Maplewood Plant, 64 N. L. R. B.
78.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record , therefore , the undersigned concludes and finds that all
production and maintenance employees at the Louisville , Kentucky , Fibre Con-
tainer Plant of the respondent , except for office employees , superintendents, fore-
men, and all other supervisory employees with authority to hire, promote, demote,
discharge, discipline , or otherwise effect changes in the status of employees, or
effectively recommend such action , constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
On the basis of the consent election and the determination subsequently issued
by the Regional Director , which have not been challenged by the parties, the
undersigned further finds that, on September 6, 1946, and thereafter , United was
the duly designated bargaining representative of a majority of the employees in
the aforesaid collective bargaining unit-and that , pursuant to Section 9 (a) of
the Act, United therefore was entitled to act, on September 6th and thereafter,
as the exclusive representative of the employees in the aforesaid unit for the
purposes of collective bargaining with respect to wages, pay rates , hours of work
and other conditions of employment.
2. The sequence of events thereafter
On or about September 15, 1946 , the parties met to discuss the proposed agree-
ment of the United. The respondent , in turn, submitted a counterproposal there-
after ; and approximately 12 or 15 meetings followed . The record estab-
lishes, and the undersigned finds, that the negotiations , in the main, were
amicable , and that the only serious disagreements arose in connection with the
matter of wage rates and the duration of the agreement . Upon the entire
record , it would appear that the union had requested a substantial wage increase,
but that it had not suggested a fixed duration for the agreement , in its original
proposal . The counterproposal of the respondent with respect to wages, however,
which was considerably lower, appears to have been answered by a demand on the
part of United for a contract effective for the period of a year-subject to a right
on the part of the union to reopen it after 6 months for renegotiation with respect
to wages and rates of pay . Representatives of the respondent , however, took
the position that they wished to negotiate a firm commitment for any period of
time which might be agreeable to the union ; they insisted , therefore , that they
would not agree to a clause under which the parties would be privileged to reopen
the question of wages. After considerable discussion , and some degree of difficulty,
the parties compromised their difference with respect to wages and agreed upon
a contract to be effective for the 6-month period 5 On November 1, 1946, the
agreement in question was executed , to expire by its terms on May 1, 1947.
On a date in January , which does not appear in the record , certain employees
of the respondent , who had never been supporters or members of the United , sought
6 Witnesses for the United testified that representatives of the respondent declared their
conviction, during negotiations , that the parties would get on well together, and that these
representatives had stated they would be willing to negotiate a new agreement at the
expiration of the 6-months ' contract-but that the respondent had refused an automatic
renewal clause because of the possibility that "some other union" might secure the support
of a majority during the life of the contract . There was also testimony , however, that
representatives of the respondent had referred to "some other union" only In relation to a
discussion of the difficulties that might arise If the right of United to engage in union
activity on company time was not restricted . The record , also, establishes that the original
proposal of the respondent did, in fact, Include a provision for automatic renewal , in connec-
tion with the termination clause of the contract. Upon the entire record, however, the
undersigned finds this conflict in the evidence immaterial.
THE MENGEL COMPANY 713
the advice of a local attorney with respect to the formation of a rival organization,
intended to unseat United and replace it as the bargaining representative of the
employees e They were advised that it would be legal to form an independent
organization. The Independent was organized shortly thereafter ; authorization
cards were printed ; and employees who had been active in the formation of the
organization undertook forthwith to secure designations on behalf of the inde-
pendent as collective bargaining agent of the employees at the Fibre Container
Division.
On or about March 5, 1947, the organizers of the Independent informed their
attorney that a majority of the employees had authorized the Independent to
act as their representative. One week later, on the 12th of March, the attorney-
on behalf of the Independent-advised the respondent that a majority of em-
ployees of its Fibre Container Division had authorized the Independent to
represent them for the purposes of collective bargaining, and requested an early
conference to discuss recognition and terms of a collective bargaining agree-
ment.
On March 15, 1947, the respondent, by Lyman C. Martin, its general manager,
acknowledged the receipt of this demand for recognition.
The letter of acknowledgment continued as follows :
Please be advised that some months ago the National Labor Relations
Board certified United Brotherhood Carpenters and Joiners of America,
Local 2866 (affiliated with the A. F. of L.) as the representative for pur-
poses of collective bargaining of the employees above mentioned. While
we will be glad to meet with you and representatives of your Union at any
time, we seriously doubt that such a meeting would serve any useful purpose
unless and until the National Labor Relations Board certifies that you, and
not the above mentioned A. F. of L. Local Union, now represent the em-
ployees at our plant.
Copies of the correspondence were sent to the president of United, and both
of the letters were read to the employees, at a meeting in the plant, by General
Manager Martin.
3. The refusal to bargain
On April 1, 1947, United answered the communication from the respondent with
the announcement that it was still the majority representative; and stated that
it wished to discuss several changes in wages, hours and other conditions of
employment, in negotiations on a contract to be "effective" as of May 1, 1947.
Thereafter, on April 4, 1947, however, the respondent replied as follows :
We acknowledge receipt of your letter of April 1st. We note that Local
2866 claims to still represent a majority of employees in our Louisville
Fibre Container Plant for purposes of collective bargaining.
Under date of March 15, 1947, we sent you a copy of a letter from the
General Counsel for the Independent Corrugated Box Makers Union, Local
No. 1, wherein it was claimed, among other things, that the union now rep-
The record indicates that several of the employees had consulted General Manager
Martin first, in this connection ; and that he had supplied them with the name of the
attorney they later consulted. It is clear, however, that Martin did not suggest or approve
the formation of a rival union, and that he did not urge the employees to consult the
attorney in question.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resents a majority of the employees in our Louisville Fibre Container Plant
for purposes of collective bargaining.
You will appreciate that with these conflicting representation claims,
we are put in a position where we can negotiate with neither union until
the matter of representation is settled and determined in the manner pre-
scribed by law.
On the same date, also, copies of this correspondence between the respondent
and United wei e forwarded by the respondent to the Independent. The reply
of United dated April 8, 1947, reads as follows :
In your letter of April 4th, 1947, you state that you have a notice from
the Independent Corrugated Box Makers Union, Local No 1, that they have
a majority of your workers signed in that Union. That, Mr. Martin, is
impossible, as we now have 102 dues paying members in our Local Union.
You also know we were certified as the Bargaining Unit by the N. L. R. B.
in September of 1946. Which certification holds good for one year from
date.
Now 1Ir. Martin, as our contract expires on May 1st, 1947, we again ask
for a meeting to negotiate a new contract, or for N on to show definite proof
that we do not have a majority of workers in your plant.
We wish to get this settled peacefully, but are prepared to take steps to
protect our rights and can have a long drawn out fight if that is what the
Company wishes.
On April 11, 1947, the Independent, through its attorney, filed a petition with
the Regional Office of the Board, alleging that a question of representation had
arisen among employees of the respondent in its Fibre Container Division, cur-
rently represented by the United.? Formal notice with respect to the filing of
the petition was dispatched to United and the respondent by the Regional Di-
rector. After investigation, however, the Independent and the respondent were
advised by the Regional Director, on April 30, 1947, that further investigation did
not appear to be warranted. The pertinent paragraph in his letter reads as
follows :
In ,accordance with principles announced in prior Board decisions which
appear to be controlling on the facts of the instant case as established by our
preliminary investigation, it does not appear that further proceedings seem
warranted inasmuch as the Consent Determination of Representatives issued
in Case No. 9-R-2345 on December 6, 1946, [sic] constitutes a bar to the inves-
tigation of representatives at this time.8 I am therefore declining to take
further action in this matter.
On May 1, 1947, the date on which the agreement between United and the
respondent expired by its terms, the company was notified by the attorney for the
Independent that it intended to seek a review of the Regional Director's action
7 In the meantime , according to the record , United had filed the required notice, with
respect to a labor dispute at the Fibre Container Division, under the War Labor Disputes
Act. There is no indication , however, of any action taken as a result of the notice in
question.
8 Subsequently, according to the record , the attorney for the Independent queried the
Regional Director with respect to the actual date of the consent determination. On May
5, 1947, the Regional Director acknowledged error in this connection, and cited the date
of the consent determination correctly as September 6, 1946.
THE MENGEL COMPANY 715
by the Board. His letter to the respondent concluded with the following state-
ment :
Pending this review, any action taken by your Company in entering into
contract negotiation, will be considered a violation of the National Labor
Relations Act, and appropriate action taken in regard thereto.
The respondent acknowledged its receipt of this communication without any
comment. Thereafter, on May 12, 1947, the Board acknowledged receipt of the
Independent's appeal. On June 2nd, however, it advised the parties by wire
that the action of the Regional Director had been affirmed, and that the appeal of
the Independent, therefore, had been denied.
Almost immediately thereafter General Manager Martin called the Independ-
ent committee and informed them that it would be unlawful for the respondent to
bargain with the Independent. He took advantage of the occasion however to
ask for proof of the Independent's claim that it was, in fact, the authorized
representative of a majority. The authorization cards executed on behalf of
the Independent were submitted forthwith.
Thereafter, on June 6, 1947, United again addressed the respondent by letter,
referred to the action of the Board in sustaining the decision of the Regional
Director with respect to the Independent's petition, and reaffirmed its desire
to meet with representatives of the respondent "at the earliest possible date"
in order to negotiate a new agreement. On the 9th of June, however, the at-
torney for the respondent, in reply, advised the union that :
Upon receipt of advice from the National Labor Relations Board that the
Regional Directors ' refusal to take further action in the above matter had
been sustained , we examined the authorization cards now held by the
Independent Corrugated Boxmakers Local Union #1.
We are satisfied that the Independent Corrugated Boxmakers Local Union
#1 represents a heavy majority of employees in the bargaining unit at the
Louisville plant of the Mengel Company's Fibre Container Division. We
have advised Mr. Martin that in the light of this fact, it would be clearly
unlawful to negotiate with the Carpenters and Joiners Union.
The record establishes , and the undersigned finds, that the examination to
which this letter referred had been conducted on the 6th of June, when the
Independent , as noted above, submitted its 90 authorization cards to repre-
sentatives of the respondent. On the basis of a comparison between these cards
and the personnel records, it then appeared, according to credited evidence in
the record, that there had been 139 employees in the appropriate bargaining
unit at the Fibre Container Division on the 12th of March, when the Independent
had presented its initial claim for recognition ; 70 of the 90 cards submitted
by the Independent, according to the record, had been signed before that date.
It further appeared that on the 4th of April, when the respondent had advised
United that it would refuse to negotiate a new agreement because of the In-
dependent 's claim, there had still been 139 employees in the appropriate col-
lective bargaining unit; and that 83 of the 90 cards submitted by the Inde-
pendent on June 6th had been executed before the date in question. On the
6th of June, the date of the check, however, according to the record, there were
only 116 employees in the appropriate bargaining unit ; and only 74 of them, it
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears, had designated the Independent as their collective bargaining agent.'
Nevertheless, and in spite of the fact that it was satisfied of the Independent's
status as the majority representative, the respondent has consistently refused to
deal with either of the rival organizations since the 6th of June.1° The record
indicates, and the undersigned finds, that the respondent has continued to main-
tain the conditions of employment established by its agreement with the United.
It was emphasized, however-and the undersigned finds-that the respondent has
done so unilaterally, and that there has been no agreement or understanding
between United and the respondent in that connection.
On July 1, 1947, the respondent announced a wage increase. Although it
appears that the necessity for such action had been brought to the attention
of the company by employees who were currently active in the organizational
campaign of the Independent, there is no reliable evidence to indicate that the
respondent had recognized the right of the Independent to speak for the em-
ployees, or that it had negotiated with that organization in connection with
the wage increase which they received.
Conclusions
The arguments of counsel
The theory of the present complaint, as explained by counsel for the Board,
is grounded, essentially, upon the contention that the consent determination
of the Regional Director on September 6, 1946, conferred upon United the right
to function as the exclusive representative of employees in the appropriate unit
for a "reasonable period" of at least 1 year thereafter; that the subsequent
execution of a 6-months contract by the parties could not modify or circum-
scribe the rights of United in this connection; and that the refusal of the
respondent to negotiate with United in regard to a second contract during the
"certification" year, therefore, constituted an illegal refusal to bargain. The
contentions of the respondent, as embodied in its affirmative defense, are set
forth therein as follows :
Respondent states that [the United was "certified" by the Board on
September 6, 1946 as the exclusive representative of employees in the ap-
propriate collective bargaining unit] aforesaid, but said certification was
indefinite as to the length of time during which it would be in effect, and
did not in any way or to any extent, either expressly or by implication, state
or purport to determine that the Carpenters Union would continue to be
the exclusive representative as aforesaid for any stated or definite or par-
ticular period of time, or for any length or period of time longer than a
reasonable time during which the said Carpenters Union might meet with
respondent and bargain collectively with it in an effort to negotiate an
an agreement . . . for employees of respondent at its Louisville plant
9 According to the personnel manager of the company , 20 workers had been laid off by
the respondent in the month of May ; 16 of these had been employees who had executed
authorization cards at the solicitation of Independent representatives. It was explained
that this was the reason for the fact that only 74 of the 90 cards submitted on June 6, 1947,
bore the names of persons employed in the Fibre Container Division on that date.
iO The record establishes that General Manager Martin offered-on one occasion , at least-
to resolve the "question of representation " by a consent election . United did not accept
the offer.
THE MENGEL COMPANY 717
aforesaid , and respondent states that said certification was not intended to,
did not, and could not lawfully , fix or establish a permanent or indefinite
bargaining relationship between respondent and the Carpenters Union
without regard to new situations that might develop. .. .
Respondent states that the Carpenters Union, by virtue of negotiating
with respondent a collective bargaining agreement to be in effect for a
term and period of only six months as aforesaid , rather than for a longer
term and period of time, thereby voluntarily and through the orderly
processes of collective bargaining , irrevocably , conclusively and voluntarily
fixed the expiration date of said contract as the expiration date of the
period of reasonable time during which the bargaining relationship estab-
lished between the respondent and the Carpenters Union as the result of
the election . . . and the certification ... was required by the Act to be
permitted to exist and function so as to be given a fair chance to
succeed... .
After a reference to the organization of the Independent , the presentation of
its claim for recognition, and the subsequent verification by the company of its
status as a majority representative , the affirmative defense of the respondent
continues as follows :
Respondent states that it cannot lawfully bargain, negotiate or deal with
the Carpenters Union in any respect or for any purpose , insofar as the em-
ployees of respondent in [the appropriate collective bargaining unit] are
concerned , for the reasons stated in the paragraph next above , and respond-
ent states that if it did bargain , negotiate or in any way deal with the
Carpenters Union insofar as the employees aforesaid are concerned, re-
spondent would be guilty of unfair labor practices under the Act and would
be going contrary to the wishes and desires of the vast majority of its
employees in the bargaining unit aforesaid , and generally would thereby
be engaging in acts and practices contrary to the plain letter, spirit and
intent of the Act and would be interfering with the right of its employees
to self-organization , to form, join, or assist labor organizations , to bargain
collectively through representatives of their own choosing , and to engage
in concerted activities , for the purpose of collective bargaining or other
mutual aid or protection , all of which rights are guaranteed to respondent's
employees by the Act and none of which rights can this respondent inter-
fere with , thwart, hinder , or ignore.
Respondent states that for the reasons hereinbefore set forth it cannot
lawfully bargain , negotiate or deal with anyone other than the Independent
Union in respect to rates of pay, wages , hours of employment , and other
conditions of employment , insofar as the employees of respondent in [the
appropriate collective bargaining unit] are concerned.
Counsel for the Board insists , however, that the consent determination to
which reference has been made must be considered effective for the entire period
customarily recognized as a "reasonable" period of time; that the claims of the
Independent must be considered ineffective to raise a genuine question of rep-
resentation during the period for which the "certification" of the Regional
Director was effective ; and that such claims, therefore , could not provide a
legal justification for the refusal of the respondent to negotiate a new agreement
with the United.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis
The contentions of counsel for the Board, as summarized herein, are based'
on well established principles. In the absence of unusual circumstances, it
is clear, the majority status of a union which has achieved such status as the
result of free choice by the employees-and its concomitant right to demand
recognition as their exclusive bargaining agent-can not be subjected to chal-
lenge for a "reasonable" period after its selection as the representative of the
employees. Throughout the "reasonable" period, then, there rests upon the
employer of the workers involved a duty to bargain in good faith with the union
which has established its status as their representative; an interim shift in
allegiance by a majority of the employees, it is clear, is insufficient, by itself,
to relieve the employer of this obligation to bargain.
These decisional principles, articulated by the agency to effectuate the basic
policy of the statute, have received judicial approval in numerous cases. Early
in the history of the Act, it was recognized by the Board and the courts, even
in cases where the union had established its status as a majority representative
by informal procedures, that the derivative right of the union to act as the
exclusive representative of employees for a reasonable period ought not to be
considered as subject to defeasance by the subsequent loss of its status as a
majority representative when the defection of the employees, if any, followed
the commission of unfair labor practices by the employer ." Similarly, in cases
where the union had established its majority status by secret ballot, the courts
have affirmed the determination of the Board that a subsequent loss of such
majority status incident to the commission of unfair labor practices by the
employer should not be considered to oust the choice of the employees, as ex-
pressed in a fair and secret election-at least until after the employer had
taken action to remedy its unfair labor practices, and had accorded the exclusive
representative a "reasonable" period of time in which to achieve the benefits
of collective bargaining on behalf of the employees."
Judicial enforcement of agency orders in this type of case, however , has not
been limited to cases in which the loss of majority could be traced to antecedent
unfair labor practices. Contrary to the contentions of the respondent, the
11 N. L It. B. v. Highland Park Manufacturing Co., 110 F. (2d) 632 (C C. A. 4 ) enf'g 12
N. L R B. 1238 ; N. L. R. B v Bradford Dyeing Assn ., 310 U. S. 318 , enf'g 4 N. L. R. B.
604, 8 N . L. It. B. 979; N. L. R. B. v. P. Lorillard Co., 314 U S. 512, reversing and remanding
117 F. (2d) 921 (C. C. A. 6) with directions to enforce 16 N. L. It. B. 684 ; Great Southern
Trucking Co. v. N. L It. B., 139 F. (2d) 984 (C. C. A. 4), in contempt ; N. L R. B. v. Clinton
E. Hobbs Co, 132 F. (2d) 249 (C. C. A. 1) enf'g 41 N. L. It. B. 537; N. L. R. B. v. Burke
Machine Tool Co, 133 F. ( 2d) 618 ( C. C. A. 6) enf'g as modified 36 N L. It. B 1329;
N. L. R. B. v. Karp Metal Products Co., Inc, 134 F. (2d) 954 (C. C. A. 2 ), supplemental
decree October 23, 1943 enf 'g. 42 N L. R B. 119, as supplemented by 51 N. L. R. B 621 ;
N. L It. B. v. Medo Photo Supply Corp, 321 U. S. 678, enf 'g 43 N. L. R. B. 989; N. L . R. B. v.
Franks Bros Co., 321 U. S. 702 , enf'g 44 N. L. R. B. 898; N. L. It. B. v. Porcelain Steels,
Inc, 138 F. (2d) 840 (C. C A 8) enf'g 46 N. L. R. B. 125
"John J Oughton , et al. v. N. L. R. B ., 118 F. (2d) 486 ( C. C. A. 3 ), on rehearing, enf'g
20 N. L. R. B. 301; Valley Mould & Iron Corp . v. N. L. if . B., 116 F. ( 2d) 760 ( C. C. A. 7)
enf'g 20 N. L It. B 211 ; N L. R . B. v. May Department Stores, 326 U. S. 376, enf'g 53
N. L. R. B 1366 ; N. L. R B. v. Blair Quarries , Inc., 152 F. ( 2d) 25 ( C C A. 4 ) enf'g 58
N. L. R. B. 1448 ; N. L. R. B . v. Gatke Corp ., 162 F ( 2d) 252 (C. C. A 7) enf'g 69 N . L. It. B.
333, 56 N L R B. 1525, Cf. N. L. R. B. v. Inter-City Advertising Co., 154 F. (2d) 244. In
every case , with one exception-the Inter- City Advertising Company case-the ultimate
court decision has decreed unqualified enforcement of the agency order involved.
THE MENGEL COMPANY 719
-courts have held in a number of cases that the majority status of a labor organ-
ization, established in a fair election and confirmed by the certification of the
Board, mut be given effect for a "reasonable" period, even though the majority
support of the organization was dissipated thereafter without the commission
of unfair labor practices on the part of the employer." These decisions estab-
lish the basis for the contentions of counsel for the Board.
By virtue of the decisions cited, certain fundamental concepts with respect
to the mandates of the Board, and the policy of the Act which it was created
to administer, have become established in the law of labor relations and judicial
review. Stability of labor-management relations, and promotion of the collec-
tive bargaining policy embodied in the Act, it is clear, can be achieved most
effectively only through such reasonable remedies as the Board, in its expert
judgment, deeins necessary. The powers entrusted to the Board, according to
the cases, permit it, in its discretion, to direct in employer to bargain with the
union lie has rejected in defiance of the statute even where, as of the date of the
order, the union has failed to maintain its status as a majority representative
in the appropriate unit. Proof of a direct causal relationship between the em-
ployer's culpability and the subsequent loss of majority, and proof of the osten-
sible preferences of the employees alter the refusal to bargain, are both irrel-
evant if the Board, in its discretion, so concludes, with respect to the question
of power to remedy the outstanding refusal to bargain by requiring the renewal
of negotiations with the union which was the chosen representative when the
refusal occurred. And it is a significant and necessary corollary of these well
established doctrines that a Board certification must be endowed with vitality
for at least a reasonable period, if the Board deeins it necessary, regardless of
shifts in employee sentiment, and regardless of the absence of employer mis-
conduct in bringing about the change of preference.
Candor, however, requires the acknowledgment that there is much of merit
in the arguments of the respondent. Its counsel does not contest the propriety
of the principles on which the Board relies, but presents an argument of con-
Aiderable persuasive power with respect to their application in the instant case.
None of the precedents cited, it is true, have ever defined in absolute terms the
length of the "reasonable" period within which the agency "certification" must
be given effect. The Supreme Court, instead-in the Fianlcs Brothers case-
described the rights and obligations of the parties as follows :
A Boat d order which requires an employer to bargain with a designated
union is not intended to fix at permanent bargaining relationship without
regard to new situations which may develop . . . But as the remedy here in
question recogniz:'s, a bargaining relationship once rightfully established must
be permitted to exist and function for a reasonable period in which it can be
given a fair chance to succeed . . .
II N L. R R. v Botany Worsted Mills, 133 h' (2d) 876 (C C. A 3) enf g 41 N. L R B.
218; N L R B v. Appalachian Electric Power Cu, 140 F. (2d) 217 (C C. A. 4) enf'g as
mod,tied 47 N L. It. 11 821 ; N L. R B. v. Century Oxford Manufacturing Corp., 140 F. (2d)
541 (C. C A 2) enf'g 47 N. L. R B 835; N L. R. B. v. Greider Machine Tool & Die Co.,
142 F (2d) 163 (C C A 6) enf'g 49 N L R B 1:325, Motor Valve it Manufacturing Co.
v.N L R.B, 149F. (2d) 247 (C C A 6) cnfg58N.L R.B 1057; N.L R.B.v The
Prudential Insurance Co. of America, 154 F (2d) 385 (C C A 6) ent'g 56 N. L. R. B. 1847,
1859, N. L. R B. v Amrrican-Marsh Pumps, Inc (C. C A 6) decree on October 24, 1946,
enf'g as modified 62 N. L . R. B. 931.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while a Circuit Court of Appeals, in the Appalachian Electric case, expressed its
conception as to the effect of a certification in similar terms, as follows:
Inasmuch as a major objective of the Wagner Act is to bring about a
contract binding on both parties with some fair degree of permanency, we
feel that a certification must be endowed with a longevity sufficient to accom-
plish its essential purposes. The operative life of a certification should be at
least a reasonable time, depending upon the circumstances of the individual
case.
And the respondent, in substance, argues that United, by its uncoerced accep-
tance of a 6-months contract, fixed that period rather than one of greater dura-
tion, as the "reasonable" period contemplated by the decisions of the Board and
the courts; that it was the period in which the union felt that it would have a
"fair chance" to succeed ; and that it was the period which the union considered
"sufficient to accomplish [the] essential purpose" of the Regional Director's
consent determination.14 In this respect, the instant case is one of first im-
pression. Several of the cases cited involved judicial recognition of the Board's
authority to recognize the effectiveness of a certification beyond the period of
time which it normally considers to be reasonable i. e., 1 year.'' The instant
matter, however, is the first in which the Board has been asked to determine,
in an unfair labor practice case, that the effective life of a certification or con-
sent determination is exhausted with the expiration of a short-term contract
for less than a year. And it must be admitted that the cases which have re-
ceived judicial approval to date provide but little in the way of guidance for
the determination of this question.
Upon the entire record, the undersigned is satisfied, and finds, that the ad-
mitted refusal of the respondent to bargain with United in regard to a new
agreement was the result of a decision grounded in genuine doubt as to the
extent of its legal obligation, under all the circumstances-and the record con-
tains an ample indication that the respondent, in this connection, has acted in
good faith.16 Such considerations however, despite their appeal, are immaterial
in this connection ; the issues posed for resolution cannot be disposed of by the
recognition of the respondent's good faith-they require a re-examination of the
statute's basic policy, and a broad determination of the respondent's obligation
with respect to United, as a matter of law, in the light of that basic policy. And
upon his consideration of the record, the state of the law, and the precedents-
both administrative and judicial-the undersigned is constrained to find that
there is no merit in the contentions of the respondent.
The courts have stated many times that the Board is free to determine the
degree of effectiveness to be given its administrative determinations with re-
spect to the representative status of labor organizations. In the consideration
of such questions the Board, as counsel indicates, has often been required to
14 The undisputed evidence shows that William Beller, president of the United, stated
at the time that he believed 6 months would be a sufficient period for the union to demon-
strate to the respondent and the employees that it was worthy of their trust.
11 See N. L. R. B. v. American-Marsh Pumps and N. L. R. B. v. Gatke Corporation, supra.
16 Thus the record establishes that the respondent observed its obligations under the
6-months contract fully, and without any reservation, throughout the period in which that
agreement was current.
THE MENGEL COMPANY 721
reconcile two antithetical views with respect to the objectives of the statute-
the view that it should be administered to promote the greatest freedom of
choice on the part of employees with respect to the designation of their bargain-
ing agent, and the view that it should be administered in such a way as to pro-
mote the greatest possible degree of stability in collective bargaining relation-
ships consistent with such freedom of choice. A study of Board decisions in
many related fields of action will reveal that it has emphasized the virtues of
stability in recent years, and that it has substantially circumscribed the right of
employees to exercise uninhibited freedom of choice. Recently, in a series of
cases, the Board determined for example that 2-year contracts, and con-
tracts of unreasonable or indefinite duration should be considered a bar to ad-
ministrative consideration of a rival claim throughout their initial 2-year
period, even in the face of evidence with respect to a contrary custom in the
industry." In the Reed Roller Bit decision the Board expressed the reason for
this departure from its previous "one-year rule" as follows:
Whenever a contract is urged as a bar, the Board is faced with the prob-
lem of balancing two separate interests of employees and society which the
Act was designed to protect : the interest in such stability as is essential
to encourage effective collective bargaining, and the sometimes conflicting
interest in the freedom of employees to select and change their representa-
tives. In furtherance of the purposes of the Act, we have repeatedly held
that employees are entitled to change their representatives, if they so de-
sire, at reasonable intervals; or conversely, that a collective bargaining
contract may preclude a determination of representatives for a reason-
able period.
In the light of our experience in administering the Act, we believe that
a contract for a term of 2 years cannot be said to be of unreasonable dura-
tion. We have already held that 2-year contracts are presumptively of
reasonable duration. In applying this rule, we have not discovered any com-
pelling conditions which indicate that such agreements unduly limit the
right of employees to change their representatives . . .
For large masses of employees collective bargaining has but recently
emerged from a stage of trial and error, during which its techniques and
full potentialities were being slowly developed under the encouragement
and protection of the Act. To have insisted in the past upon prolonged ad-
herence to a bargaining agent, once chosen, would have been wholly incom-
patible with this experimental and transitional period. It was especially
necessary, therefore, to lay emphasis upon the right of workers to select
and change their representatives. Now, however, the emphasis can better
be placed elsewhere. We think that the time has come when stability of in-
dustrial relations can be better served, without unreasonably restricting
employees in their right to change representatives, by refusing to interfere
with bargaining relations secured by collective agreements of 2 years' dura-
tion. Such contracts, even in the presence of a contrary custom in the in-
dustry, should ordinarily preclude a determination of representatives until
shortly before their terminal date.
11 Matter of Reed Roller Bit Co , 72 N. L. R B. 927; Matter of Filtrol Corp., 74 N. L. It. B.
1307; Matter of Puritan Ice Company, 74 N L R B. 1311 ; Matter of S & W Fine Foods,
74 N. L. It. B. 1360.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In cases where the Board has been called upon to consider the propriety of
rival claims which were timely made in relation to agreements about to expire
but within a period of less than 1 year after the issuance of a certification in
favor of the union party to the contract, the Board has again elected to emphasize
the virtues of a rule designed to promote stability in the collective bargaining
relationship .18 In the leading case on the subject-flatter of Kimberly-Clark
Corp., the problem is discussed in the following terms :
We have consistently held, both in unfair labor practice cases involving
Section 8 (5) of the Act, and in cases arising under Section 9 (c), that a
Board election and certification must be treated as identifying the statutory
baigaining agent with certainty and finality for a reasonable period of
time-about a year, under ordinary circumstances. This policy serves the
dual purpose of encouraging the execution of collective bargaining con-
tracts and of discouraging "raiding" and too frequent elections. It means,
in operation, that a demand for recognition, or petition for investigation of
representatives, filed unseasonably early in the year following a certification
will be ineffective to raise a question concerning representation, for the cer-
tification is deemed to foreclose any such question for a reasonable time. The
question in the present case is whether the fact that the certified union held
a contract expiring 7 mouths after its certification warrants the granting of
a petition for an election which would otherwise be dismissed as premature.
We think not. The existence of the Independent's antecedent contract does
not alter the fact that only 6 months before the A. F. of L.'s demand for rec-
ognition the Independent had won an election and received our eert.fi-,a-
tion as the statutory bargaining agent of the Company's employees. That
fact is decisive. We hold that, as of the date of the A. F. of L's demand and
petition, the Independent was still presumptively the chosen representative
of a majority of the employees, and entitled to undisturbed enjoyment of its
certified status as such.
Thereafter in the Con P. Curran case, the Board-in comparable circum-
stances-expressed the view by way of dictum that any refusal on the part of
the employer to negotiate an agreement with the certified union during the period
of 1 year after a certification would have been a violation of Section 8 (5) of
the Act. On the facts of the case, the Board concluded that it would be entirely
inconsistent to require an employer to negotiate with a certified union in regard
to an agreement, while it withheld power from the parties to make any agree-
inent that resulted effective as against a rival claim asserted at any time during
the certification year.
Finally, in the most recent case on the subject-Matter of DeVry Corporation-
the Board considered a situation in which the consent determination of the
Regional Director was followed by the execution of an agreement between the
"certified" union and the employer to be effective for 1 year will a provision
for automatic renewal from year to year thereafter-and in which the parties
agreed, one month before the end of the "certification" year to rescind their first
agreement and execute a second contract to be effective for a farther 1 year
term. Although the petition before the Board had been timely filed in relation
is Matter of Kimberly-Clark Corporation, 61 N. L. R. B. 90; Matter of Swift & Company,
66 N. L R. B 845; Matter of Omaha Packing Co., 67 N. L. R B. 304; Matter of Con P.
Curran Printing Co., 67 N. L R B 1419, Matter of The Quaker Maid Go , Inc., 71 N. L.
°B. B 915; Matter of DeVry Corporation, 73 N. L. R B. 1145.
THE MENGEL COMPANY 723
to the automatic renewal date of the first agreement between the parties, the
Board dismissed the petition , and justified its action as follows:
The Board has established the rule that a collective bargaining agree-
ment for a reasonable term, executed within the 1-year period following the
union's certification , is an effective bar during its term to a claim of repre-
sentation filed by a rival union, even where the contract is a premature
extension of a prior contract, or where the contracting parties had been put
on notice of a rival claim. The fact that the contract claimed to be a bar
is the second contract to be executed within the certification year does not
alter the application of the rule , it being for a reasonable term.
Upon this posture of the law, the undersigned is constrained to find that the
claim of the Independent that it was the majority representative, presented
during the life of the 6-months contract between United and the respondent,
did not create a bona fide question of representation upon the expiration of
that agreement ; and that the admitted refusal of the respondent to negotiate
a new agreement with United after the expiration of the 6-months contract was
a violation of the Act. As was indicated by the Board in the Con I'. Curran case,
it would be quixotic to recognize the power of the parties to make agreements
executed during the certification year effective as against any rival claim
asserted during the year, and concurrently to hold that a rival claim could be
entertained if either party refused to negotiate with such an end in view. Any
such decision, in effect, would invite employers to execute agreements and bar
all rival claims for the duration of their reasonable term if they desired to
maintain their contractual relationship with the "certified" union, and to reject
all efforts at negotiation-paving the way for rival claim-if they wished to
avoid continuation of their contractual relationship with the organization which
had been certified. Such a policy would delegate to employers a freedom of
choice which the Act reserves to employees, subject only to the limitations already
cited. Reasonable interpretation of the statute does not require any such
result.
The undersigned has considered the effect of the Labor Management Relations
Act of 1947 upon the rights and obligations of the parties, and examination of the
statute and its legislative history fails to reveal any basis for a modification of
the conclusions embodied in this report. Indeed, the Act as amended by this
recent legislation contains a provision which can only be construed as evidence
of legislative approval for the "one-year rule" already adopted by the Board in
the exercise of its administrative discretion." And although the amended Act
contains a provision which requires the Board to entertain petitions for the
"decertification" of a certified or recognized bargaining representative, the legis-
lative history of the provision indicates clearly that it was not intended to cir-
cumscribe the correlative right of employees to remain secure in their choice
of a bargaining representative for at least 1 year after that choice had been
expressed in a secret election under the auspices of the Board 20 The statute, in
19 Section 9 (c) (3) of the Act, as amended , provides :
No election shall he directed in any bargaining unit or env subdivision within which,
in the preceding twelve-month period, a valid election shall have been held.
20 A provision in the bill originally adopted by the House of Representatives would have
permitted the Board to entertain "decertification" petitions at any time However, when
the measure was modified in conference, this provision was stricken. It was clearly the
intention of the conferees to subiect proceedings for the decertification of a barnaining repre-
sentative to the same limitations as apply to other representation proceedings. See the
Conference Report, House Report No 510, 80th Congress, 1st Session, p. 49.
817319-49-vol. 80-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sum, can be justly said to embody congressional approval of the agency policy
with respect to the achievement of stability in collective bargaining relationships
established under its supervision and control.
Upon the entire record, therefore, and after consideration of the contentions
presented by counsel, the undersigned concludes and finds that despite the claim
of the Independent with respect to its majority status, United was, on September
6, 1946, and at all times thereafter, the exclusive representative of the employees
in an appropriate bargaining unit at the Louisville plant of the respondent's
Fibre Container Division, for the purpose of collective bargaining with respect
to wages, pay rates, hours of work and other conditions of employment-and that
the refusal of the respondent, on April 4, 1947, and thereafter, to bargain with
United on an agreement to replace the 6-months contract which was about to
expire, was a violation of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in an unfair labor
practice, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act, and to
restore as nearly as possible the status quo existing prior to the commission of
the unfair labor practice.
Specifically, it has been found that the respondent refused to bargain collec-
tively with United as the representative of a majority of its employees in an
appropriate unit. It will be recommended therefore that the respondent, upon
request, bargain collectively with the union 21 Although such a recommendation
would normally dispose of the matter before the undersigned, the facts of the
case require a further explanation with respect to the scope and intent of the in-
junction placed upon the parties. In the normal course of events, an order
directed to an employer that he cease and desist from any refusal to bargain
and that he bargain, upon request, with the exclusive representative of his
employees in an appropriate unit, is given prospective effect for a reasonable
period of time, in the expectation that compliance with the order will result in
21 Since the hearing in the instant case, several amendments to the Act, embodied in the
Labor Management Relations Act of 1947, to which reference has been made, have become
effective Under these amendments, the Board is precluded from certifying as a bargaining
representative any labor organization which has not complied with the provisions of Section
9 (f), (g) and (h) of the amended Act-and a question thus presents itself as to the
propriety of an unqualified order in the instant case. The undersigned is unable to deter-
mine from the record whether the parent organization of the United and the local organiza-
tion which filed the charge have in fact complied with these provisions of the Act. Admin-
istrative advices indicate that the parent organization has complied with the Act in this
respect but that the local organization has not However, since this information has not
been made a part of the record in the instant case, expressly or by necessary implication,
the undersigned will make no assumptions with respect to compliance and will frame a
recommendation in the alternative, effective in either contingency and subject to the further
limitations indicated herein. Cf. Matter of Marshall & Bruce Co, 75 N. L. R. B. 90.
THE MENGEL COMPANY 725
the execution of an agreement between the parties, which will be observed and
given effect throughout the period of its reasonable term. The facts of the
instant case, however, and the finding of the undersigned that the respondent was
motivated by a reasonable doubt in connection with its refusal to bargain,
require in justice to the parties involved, that the undersigned express, in terms
as precise as possible, his understanding as to the extent of the respondent's ob-
ligation to bargain.
The Supreme Court in the Franks Bros. case expressed its views in this con-
nection as follows :
Contrary to petitioner's suggestion, this remedy, as embodied in a Boar(r
order, does not involve any injustice to employees who may wish to substitute
for the particular union some other bargaining agent or arrangement. For'
a Board order which requires an employer to bargain with a designated unions
is not intended to fix a permanent bargaining relationship without regard
to new situations that may develop . . . But, as the remedy here in
question recognizes, a bargaining relationship once rightfully established
must be permitted to exist and function for a reasonable period in which,
it can be given a fair chance to succeed. After such a reasonable period,
the Board may, in a proper proceeding and upon a proper showing, take
steps in recognition of changed situations which might make appropriate,
changed bargaining relationships.
In similar fashion, the Board in the Karp Metal Products case expressed the
view, on remand, that its order upon the respondent to bargain with the union
ought not to be interpreted in such a fashion as to "saddle" upon the employees
a representative they no longer desired. It was pointed out, however, that until
the Board's order upon the respondent to bargain had been faithfully carried
out, the real desires of the employees would be "matters of speculation and argu-
ment." The Board, accordingly, concluded that if the employees, after conditions
of free choice had been restored, really desired a different representative, any,
rival union or group of employees would be free to petition the Board, under
Section 9 of the Act, for the investigation of a representation question which-
might then exist.' Similar observations are apposite here-and the question
before the undersigned is thus resolved into one as to when the reasonable period
of time to which the United is entitled will be considered to have ended.
The undersigned entertains no doubt that this respondent, in the absence of
conflicting claims, would have bargained with United for the balance of its
"certification" year, that it would have embodied any understanding with the
United in a signed agreement, and that it would have given effect to that agree-
ment for its reasonable term. An order designed to effectuate the policies of
the Act could not require more or be satisfied with less. As counsel for the
Board replied when queried on a related issue :
The union has not been permitted the one-year period to which it is en-
titled to bargain for the employees who chose it in an election. They-
[have] been allowed approximately seven months . .. I believe that
they are at least entitled to the balance of that year, to that twelve month's
period, to consummate some agreement or to bargain, whether or not an
agreement is reached. To bargain with the Company free from a refusal to)
meet with them.
22 Cf. Matter of Maecot Stove Company, 75 N. L. R B. 427, decided December 9, 1417-;.
N. L. R. B. v. Gatke Corporation, 162 F. (2d) 252 (C. C. A. 7) enforcing 69 N. L. R. B; 335.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned agrees. It is, therefore, the sense of the recommendations em-
bodied in this report that the respondent ought to bargain in good faith with
United for the period of time in which it would have been required to bargain
in the absence of any rival claim with respect to representation and the respond-
ent's resultant mistake of law, such period to begin upon the date of the respond-
ent's acknowledgment, by word and deed, that it will bargain with United, upon
request, as recommended herein." It is further intent of the recommendations
embodied in this report that the respondent ought to embody in a written and
signed agreement any understanding which it may reach with the United as a
result of negotiations during the period cited and give effect to that agreement
for its reasonabe term, as defined administratively in the decisions of the Board.
Because the respondent's refusal to bargain, as indicated in the record, was
based upon a mistake of law, and because the record contains no evidence that
any danger with respect to the commission of other unfair labor practices is to
be anticipated from the respondent's conduct in the past, the undersigned will
not recommend that the respondent cease and desist from the commission of any
such other unfair labor practices. However, in order to effectuate the policies
of the Act, the undersigned will recommend that the respondent cease and desist
from the specific unfair labor practice found, as explained above, and that it
cease and desist from other acts which might tend to interfere in any manner
with the efforts of United to negotiate with it as the exclusive representative of
employees in the collective bargaining unit herein found to be appropriate.
Upon the basis of the findings of fact above and upon the entire record in the
case the undersigned makes the following:
CONCLUSIONS OF LAW
1. The United Brotherhood of Carpenters and Joiners of America, Local 2866,
affiliated with the American Federation of Labor is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the Louisville, Kentucky
Fibre Container Plant of the respondent, except for office employees, superin-
tendents, foremen, and all other supervisory employees with authority to hire,
promote, demote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
3. The United Brotherhood of Carpenters and Joiners of America, Local 2866,
affiliated with the American Federation of Labor, was, on September 6, 1946,
and at all times thereafter, the exclusive representative of all employees in the
aforesaid unit, for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
4. By refusing, on April 4, 1947, and at all times thereafter, to bargain collec-
tively with the United Brotherhood of Carpenters and Joiners of America,
Local 2560, affiliated with the American Federation of Labor, as the exclusive
representative of all its employees in the appropriate unit, the respondent did
23 Although the effect of the Labor Management Relations Act of 1947 was not considered
by counsel in this connection, it seems clear that considerations identical with those
which would preclude the entertainment of a rival claim during the effective life of the
certification thus defined, would preclude the entertainment of a petition for decertification
also.
THE MENGEL COMPANY 727
engage, and has continued to engage, in unfair labor practices within the mean-
ing of Section 8 (5) of the Act.
5. By interfering with the efforts of the United Brotherhood of Carpenters and
Joiners of America, Local 2866, affiliated with the American Federation of
Labor, to bargain collectively on behalf of employees in the appropriate unit,
the respondent did engage, and has continued to engage in unfair labor practices
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, The Mengel Company, Fibre
Container Division, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with the United Brotherhood of Carpen-
ters and Joiners of America, Local 2866, affiliated with the American Federation
of Labor, if the aforesaid labor organization has complied with Section 9 (f),
(g) and (h) of the Act, as amended, as the exclusive representative of all
production and maintenance employees at its Louisville, Kentucky, Fibre Con-
tainer Plant, except for office employees, superintendents, foremen, and all other
supervisory employees with authority to hire, promote, demote, discharge,
discipline, or otherwise effect changes in the status of employees, or effectively
recommend such action, in respect to rates of pay, wages, hours of work and
other conditions of employment ; '
(b) Interfering in any other manner with the efforts of the United Brother-
hood of Carpenters and Joiners of America, Local 2866, affiliated with the Ameri-
can Federation of Labor, to bargain collectively on behalf of employees in the
appropriate unit.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, if the aforesaid labor organization has complied with Section
9 (f), (g) and (h) of the Act, as amended, bargain collectively with the United
Brotherhood of Carpenters and Joiners of America, Local 2866, affiliated with the
American Federation of Labor, as the exclusive representative of all production
and maintenance employees at its Louisville, Kentucky, Fibre Container Plant,
except for office employees, superintendents, foremen, and all other supervisory
employees with authority to hire, promote, demote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recommend
such action, with respect to rates of pay, wages, hours of work, and other
conditions of employment, and if an understanding is reached embody such
understanding in a signed agreement: 2'
(b) Post at their office and places of business in Louisville, Kentucky, copies of
the appropriate notice attached hereto. If the United Brotherhood of Carpenters
a If the aforesaid labor organization has not , in fact, complied as yet with Section 9 (f),
(g) and (h) of the Act as amended , this recommendation shall be effective if and when it
does comply with these provisions of the statute, such compliance to be complete within
thirty days after the service of these recommendations.
z' If the aforesaid labor organization has not, in fact, complied as yet with Section 9 (f),
(g) and (h) of the Act as amended, this recommendation shall be effective if and when it
does comply with these provisions of the statute, such compliance to be complete within
thirty days after the service of these recommendations.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Joiners of America, Local 2866, affiliated with the American Federation of
Labor, has complied with Section 9 (f), (g) and (h) of the Act as amended,
copies of the notice attached as "Appendix A," to be furnished by the Regional
Director of the Ninth Region, as an agent of the Board, after being duly signed
by a representative of the respondent, shall be posted by the respondent imme-
diately upon receipt thereof and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted 26 Reasonable steps shall be taken by the respondent
to insure that said notices are not altered, defaced, or covered by any other
material;
(c) If the United Brotherhood of Carpenters and Joiners of America, Local
2866, affiliated with the American Federation of Labor, has complied with
Section 9 (f), (g), and (h) of the Act, as amended, the respondent shall file with
the Regional Director of the Ninth Region, as an agent of the Board, within
twenty (20) days from the date of the service of this Intermediate Report, a
report in writing setting forth in detail the manner and form in which it has com-
plied with the foregoing recommendations.`
All parties are hereby advised that upon the filing of this Intermediate Report
and the service of copies thereof upon the parties-as provided in Section 203.45
of the Rules and Regulations of the National Labor Relations Board, Series 5,
effective August 22, 1947-the Board will enter an order transferring the case to
Itself, and will serve a copy of the order upon each of the parties, setting forth
the date of the transfer aforesaid.
If, within twenty (20) days from the date of service of this Intermediate
Report, the respondent satisfies the Regional Director, as the agent of the Board,
that it has complied, or will comply, with the foregoing recommendations, it is
recommended that the National Labor Relations Board issue an order, or take
other appropriate action, to close the case on compliance. Unless the respondent
satisfies the Regional Director within twenty (20) days from the date of service
of this Intermediate Report that it has complied, or will comply, with the fore-
going recommendations, it is recommended that the National Labor Relations
Board issue an order requiring the respondent to take the action aforesaid.
All parties are advised, however, that any party may, within twenty (20)
days from the date of service of the order transferring the case to the Board,
file with the Board, Rochambeau Building, Washington 25, D C., pursuant to
Section 203.46 of the aforesaid Rules and Regulations, an original and six copies
of a statement in writing setting forth such exceptions to the Intermediate
Report, or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he relies upon, together with the original and six
copies of a brief in support thereof. Matters not included in the Statement of
2e If the aforesaid labor organization has not, in fact, complied as yet, with Section 9 (f),
(g) and (h) of the Act, as amended , copies of the notice attached as "Appendix B" to be
furnished by the Regional Director of the Ninth Region, as an agent of the Board, after
being duly signed by a representative of the respondent , shall be posted by the respondent
immediately upon receipt thereof and maintained by it for thirty (30) consecutive days
thereafter, and for an additional thirty ( 30) consecutive days in the event of compliance
by the union with the aforesaid requirements of the Act, as amended , in conspicuous places,
including all places where notices to employees are customarily posted
27 If the aforesaid labor organization has not, in fact, complied as yet with Section 9 (f),
(g), and (h) of the Act as amended , but does comply hereafter within the period set for
such compliance the respondent shall file a further report within twenty ( 20) days of the
future date on which it is officially notified that the labor organization in question has met
the conditions hereinabove set forth , with respect to the manner and form in which it has
complied with the conditional recommendations herein.
THE MENGEL COMPANY 729
Exceptions may not thereafter be urged before the Board, or in any further pro-
ceeding under the Act. Any party also may, within the same period, file an
original and six copies of a brief in support of the Intermediate Report. Imme-
diately upon the filing of such a Statement of Exceptions and supporting brief,
or brief in support of the Intermediate Report, the party filing the same shall
serve a copy thereof upon each of the other parties . Proof of service on the
other parties of all papers filed with the Board shall be properly made as re-
quired by Section 203.85. Should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board, within
ten (10 ) days from the date of service of the order transferring the case to the
Board.
The parties are further advised that , in the event no Statement of Exceptions
is filed as provided by the aforesaid Rules and Regulations , and in the absence
of compliance , all objections and exceptions to this Intermediate Report shall be
deemed waived for all purposes , as provided in Section 203.48 of the aforesaid
Rules and Regulations , and the findings, conclusions and recommendations con-
tained herein shall be adopted by the Board and become its findings, conclusions
and order.
MAURICE M. MILLER,
Trial Examiner.
Dated January 13, 1948.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL BARGAIN collectively, upon request, with the UNITED BROTHER-
HOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 2866, affiliated with
the AMERICAN FEDERATION OF LABOR, as the exclusive representative of all
employees in the appropriate unit described below, with respect to rates
of pay, wages, hours of employment or other conditions of employment,
and if an understanding is reached, embody such understanding in a signed
agreement . The appropriate unit is :
All production and maintenance employees at our Louisville,
Kentucky, Fibre Container Plant, except for office employees, superin-
tendents, foremen, and all other supervisory employees with authority
to hire, promote, demote, discharge, discipline or otherwise effect
changes in the status of employees or effectively recommend such
action.
WE WILL NOT, in any manner, interfere with the efforts of the UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 2866, affiliated
with the AMERICAN FEDERATION OF LABOR, to bargain collectively with us as
the exclusive representative of employees in the appropriate unit described
above.
THE MENGEL COMPANY, FIBRE CONTAINER DIVISION,
Employer.
Dated -------------------------- By ------------------------------------
(Representative ) ( Title)
This notice must remain posted for sixty (60) days from the date of posting
,and must not be altered, defaced, or covered by any other material.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL BARGAIN collectively, upon request, with the UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 2866, affiliated with the
AMERICAN FEDERATION OF LABOR, as the exclusive representative of all em-
ployees in the appropriate unit described below, with respect to rates of pay,
wages, hours of employment or other conditions of employment, and if an
understanding is reached, embody such understanding in a signed agree-
ment ; provided that the aforesaid labor organization complies with Section
9 (f), (g) and (h) of the National Labor Relations Act, as amended, within
thirty (30) days after the service upon it of the aforesaid recommendations.
The appropriate unit is :
All production and maintenance employees at our Louisville,
Kentucky, Fibre Container Plant, except for office employees, superin-
tendents, foremen, and all other supervisory employees with authority
to hire, promote, demote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action.
WE WILL NOT, in any manner, interfere with the efforts of the UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 2866, affiliated
with the AMERICAN FEDERATION OF LABOR, to bargain collectively with us as
the exclusive representative of employees in the appropriate unit described
above.
THE MENGEL COMPANY, FIBRE CONTAINER DIVISION,
Employer.
Dated -------------------------- By
(Representative ) ( Title)
This notice must remain posted for thirty days from the date of posting, and
for an additional thirty days in the event of compliance by the union with the
requirements of the Act , as amended, and must not be altered, defaced , or covered
by any other material.