Toltec Metals, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1973

201 N.L.R.B. 952 (N.L.R.B. 1973)

952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Toltec Metals, Inc. and Local 569, Sheet Metal
Workers International Association, AFL-CIO.
Case 22-CA-4958
February 21, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 1, 1972, Administrative Law Judge
Samuel M. Singer issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Toltec Metals, Inc.,
Belleville , New Jersey, its officers , agents , successors,
and assigns , shall take the action set forth in the said
recommended Order.
DECISION
SAMUEL M. SINGER , Administrative Law Judge: This
proceeding , tried before me at Newark , New Jersey, on
August 29 and 30 pursuant to a charge filed on June 6 and
complaint issued on July 13, 1972, concerns allegations
that Respondent (herein sometimes called the Company)
violated Section 8(a)(5) and ( 1) of the National Labor
Relations Act, by withdrawing its previously granted
recognition of Charging Party and refusing to bargain with
it as the majority representative of its employees in an
appropriate unit.
All parties appeared and were afforded full opportunity
t Because of special circumstances, Respondent was permitted to file
and filed a supplemental brief on October 24, 1972.
2 The chief witnesses in this proceeding were Union President Silverstein
testifying for General Counsel and Company Vice President and Treasurer
Figlmolo testifying for Respondent . Although much of their testimony is in
sharp conflict, many of the salient facts upon which the conclusions herein
are based are substantially uncontradicted Each party called a rebuttal
witness to corroborate aspects of its chief witness ' testimony
3 Unless indicated otherwise , all dates are 1972.
Each card , entitled "Authorization for Representation ," called for
certain information (lob classification , shift , wage rate, etc) and read. "I,
to be heard and to examine and cross-examine witnesses.
Both General Counsel and Respondent filed briefs.' Upon
the entire record and my observation of the testimonial
demeanor of the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF RESPONDENT ; LABOR ORGANIZATION
INVOLVED
Respondent, a New Jersey corporation with principal
office and plant at Belleville , New Jersey, manufactures,
sells, and distributes steel electrical enclosures and related
products . It annually sells and ships to purchasers in other
States products valued in excess of $50 ,000. I find that at
all material times Respondent has been and is an employer
engaged in commerce within the meaning of the Act and
that assertion of jurisdiction herein is proper.
Charging Party (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
It. THE UNFAIR LABOR PRACTICES
A. The Facts 2
1. Respondent's recognition of the Union on
May 24
In early May,3 the Union received a telephone call from
one of Respondent's 16 production and maintenance
employees stating that because "conditions in the plant
were not too good and they hadn't received a pay
increase," the men were "very much interested in having
the Union represent them ." The Union then sent to the
plant three representatives who spoke to the men and
individually handed them authorization cards .4 Upon
receipt of 10 signed cards, the Union on May 22 sent
Respondent a telegram requesting recognition on the basis
of majority representation.5
On May 24, Union President Silverstein visited the plant
and renewed his request for recognition . In response to
Company Vice President Figliuolo's request for "further
proof" of majority , Silverstein produced the 10 signed
cards. Figliuolo testified that after examining the signa-
tures "I made a conclusion that he [Silverstein] had a
majority of people and that is why I scheduled a meeting,"
as requested by Silverstein, to negotiate a collective
agreements A meeting , arranged for May 30, was at
Respondent 's request postponed to June 2. Respondent
was given a copy of the Union's standard form agreement
prior to that meeting.
the undersigned , hereby authorize the SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION, or any affiliated Local Union
thereof , to represent me for purposes of Collective Bargaining, and in my
behalf, to negotiate and conclude all agreements as to hours of labor , wages,
and other conditions of employment."
5 It is stipulated that the bargaining unit consists of all production and
maintenance employees as described in the complaint , of which there were
16 during the times here material.
6 At the trial, Respondent conceded the authenticity of the signatures on
all 10 cards.
201 NLRB No. 149
TOLTEC METALS , INC. 953
2. The June 2 bargaining session
Prior to start of the negotiations and before arrival of the
other union and company negotiators , Company Vice
President Figliuolo mentioned to Union President Silver-
stein that two employees had complained that "they had
been told that if they weren't in the Union they couldn't
work in the shop." Silverstein assured him that the
employees "couldn't have heard it from any Union
representative because that is not our practice" and that if
Figliuolo disclosed the names of the two men he would "be
happy to reassure them." Figliuolo did not, however,
identify the two complaining employees. Other members of
the respective negotiating teams then joined the discussion
and the negotiations commenced.?
In the 1 1/2-hour bargaining session , the parties went
over the Union's proposals, article by article and section by
section . Agreement was reached on some clauses in the
Union's "Standard Form" draft, including the standard
recognition clause , the union-security clause , and other
noneconomic sections such as establishment of a Shop
Committee at the plant. In view of the Company's
financial hardship claim, it was agreed to leave economic
issues (wages, vacations, paid holidays, etc.) "for further
discussion at a later date ." Figliuolo readily consented to
verify Respondent's poor finances claim through examina-
tion of its books by a union accountant. Arrangements
were made to have him visit the plant on the following
Monday (June 5) and the parties were to meet after the
accountant made his findings known to the Union.
The above findings are based on the credited testimony
of Silverstein, in part corroborated by Union Representa-
tive Skulsky and also Figliuolo. I do not credit the latter's
testimony that he considered the June 2 discussions as only
tentative negotiations . According to Figliuolo , he began to
doubt the Union's majority when, just before the negotia-
tions commenced on June 2 , two employees had told him
to take their names "off the Union list," explaining that
they had signed union cards because "they" told them (the
individuals were not identified) that unless they did so they
"could no longer work for the Company." 8 To begin with,
Figliuolo admitted that at no time during the 1 1/2-hour
session with the five-man union committee did he state that
the negotiations were only "tentative." Moreover , it is hard
r The Union was represented by two agents (Skulsky and Gannone) and
two or three employees in addition to Silverstein Fighuolo, who was in
charge of the plant and Sales Manager Watts (second in command)
represented Respondent.
b Although , as previously noted, Figluolo refused to disclose to
Silverstein the names of the two employees who allegedly mentioned the
threats, at the heanng he identified the two as Claude Ade and Samuel
Files-the latter a non-English-speaking employee . Fighuolo's testimony as
to what these employees actually told him is not entirely clear and does not
jibe with the preheanpg statements he gave several days after the event. At
the hearing Fighuolo indicated that these two had approached him as he
walked by Ade's machine; that only Ade did all of the talking, and that he
did not really know if the non-English -speaking Files agreed with Ade.
Neither of his two prehearing affidavits mentions , however, the employees'
alleged claim of coercion-each alleging only an asserted shift in their
desire for union representation . Thus, in his first (June 6) affidavit Figliuolo
swore that on June 2 he told Silverstein that "a few of my employees had
approached me and told me that they no longer wished to be represented by
Local 569." In his second (June 8) affidavit Fighuolo swore that employees
Ade and Files had "asked me to take them off the union list"; and that he
told them "it was not in their hands , that they would have to get in touch
to believe that Figliuolo would have consented to the
Union's auditing the Company's books and gathering
confidential information if, as he testified , "I wasn't sure
we had a union" in the plant . Furthermore, despite his
alleged doubt, Figliuolo admittedly agreed to defer
consideration of many union proposals in subsequent
bargaining sessions . That he intended to negotiate further
with the Union is established by his own version of the
conclusion of the June 2 meeting ; namely, that the parties
had agreed to "discuss when we would have a next
meeting" as soon as the union accountant completed
auditing Respondent's books the next Monday (June 5).
Additionally, and also according to his own version,
Figliuolo made no response to Silverstein 's statement "you
are unionized" when he allegedly told Silverstein that "we
would talk about [the union proposals ] if and when we
were unionized ." Under all of these circumstances, the
comparative demeanor of the witnesses , and the poor
memory displayed by Figliuolo in testifying about the
positions of the parties in the negotiations,e I prefer to
credit the testimony of Silverstein, corroborated by Union
Representative Skulsky, that Respondent did not question
the Union's majority status at the June 2 bargaining
meeting and , contrary to Figliuolo, that the negotiations
conducted on that day were not " tentative" subject to
further verification of the Union' s representative status.10
3. The June 2 union meeting
At lunchtime the same day (June 2), immediately after
the bargaining session , Union President Silverstein met
with 15 of the 16 employees and "made a full and detailed
report of what had taken place" in the bargaining session.
The other union representatives and employee committee-
men were afforded an opportunity to supplement Silver-
stein 's remarks . In the discussion that followed no
employee expressed any wish to disassociate himself from
the Union."
4. Respondent's withdrawal of union recognition
As prearranged, the Union' s accountant examined
Respondent's books on Monday, June 5 and then reported
to Union President Silverstein that Respondent had indeed
been losing money and was in financial straits . Shortly
with the union." He also swore that this episode actually took place "the
day before we had a meeting scheduled with Mr. Silverstein , the first
meeting for contract negotiations." Nor did Sales Manager Watts , called by
Respondent to corroborate Figliuolo , refer to any coercion claim by any
company employee. According to Watts, in describing his encounter with
the two employees just before the June 2 meeting, Figliuolo told him that
the "two men approached him saying they did not want to belong to the
union ; that was all."
9 As he testified , Figliuolo had before him a copy of the Union 's draft
contract marked with sketchy notes . Silverstein also testified with the
contract before him, but with the assistance of separate, detailed notes.
10 It is to be noted that Respondent in its amended answer filed at the
hearing admitted the complaint allegation (par. 12) that "On or about June
2, 1972, Respondent did bargain collectively with respect to rates of pay,
wages, hours of employment and other terms and conditions of employ-
ment , with Local 569 , as the exclusive bargaining representative of its
employees"; Respondent only reserved its "right to prove , by way of
defense" that the "recognition of and bargaining with said local was
procured by fraud practiced upon respondent and its employees."
ii The above findings are based on Silverstein's uncontradicted
testimony ; Respondent called no one to contradict it.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afterward, at lunchtime, Silverstein conveyed to the
assembled employees the accountant's findings about the
Company's financial condition and then, according to
Figliuolo's credited testimony, Silverstein and two employ-
ee-committeemen (Peknik and Truesdale ) came to his
office , "wanting a meeting" to resume negotiations.
Figliuolo told Silverstein that he "now" knew of "four
employees" who renounced the Union and declined to
resume negotiations . 12 Figliuolo also told Silverstein that
he "called the NLRB" that morning for advice and was
told to visit the Board office the next day "to file an RM
petition."
The next morning (June 6), Figliuolo, accompanied by
Sales Manager Watts, went to the Board's Regional Office,
signed a statement, and filed an "RM" petition requesting
an election among Respondent's employees to determine
their representation desires. On the same day the Union
filed the unfair labor practice charges herein alleging
Respondent's refusal to bargain since June 5.13
On or around June 8, Figliuolo was handed a petition
addressed to the Company and Union, signed by 14 of
Respondent's employees (including the 10 who had signed
union authorization cards). The petition stated that the
signatories "do not wish" the Union to represent them "at
this time" since they felt the Company "is in no position to
meet the Union demands"; that at the time the men signed
authorization cards they were unaware of the Company's
"financial situation"; and that "[n]ow that we know [the
situation] we do not wish that the Union represent us.
" The next day (June 9), Figliuolo forwarded the
petition to the Regional Office.14
B. Analysis and Conclusions
1. It is undisputed that 10 of Respondent's 16 pro-
duction and maintenance employees signed cards expressly,
and in clear and unambiguous language , authorizing the
Union "to represent" them and "to negotiate and con-
clude" collective agreements. At the hearing Respondent
conceded authenticity of the signatures and stated it was
not claiming "misrepresentation" by solicitors in procuring
the signed cards. In response to Union President Silver-
stein's May 24 recognition request, Company Vice Presi-
dent Figliuolo agreed to a card check as proof of majority.
After examining the cards, Figliuolo (as he testified) came
to the "conclusion that he had a majority of the people,"
granted the Union recognition, and arranged for a meeting
to negotiate a collective agreement. At the June 2
12 According to Figliuolo, earlier in the day while the accountant was
auditing the Company's books, he passed by the welding area when
employee Solomon stopped him and said he "wanted to tell [Figliuolo ] that
he did not want to belong to the union " Employee Kessel, who was nearby,
said, "Me , too " Figliuolo could not recall his own response , but testified, "I
possibly could have told [Solomon ] to tell Silverstein when he came in I'm
not sure ." At one point, Figliuolo also quoted Solomon as saying (as
employee Ade allegedly had told him on June 2 , supra, sec A , 2) that "the
reason he signed the card was he was told he couldn' t work for the
Company unless he did" admitting, however , that Kessel made no such
remark Also according to Figliuolo, his foreman had reported to him (prior
to his June 5 meeting with Silverstein ) that a fifth employee (Truesdale) "did
not want to belong to the union " Yet, he also testified that this same
Truesdale shortly afterward was one of the two committeemen accompany-
ing Silverstein to his office to demand resumed bargaining Finally.
Figliuolo equivocated when asked if he had sought to ascertain who it was
bargaining session , the parties discussed in detail the
Union's proposed draft , agreed and disagreed on propos-
als, and deferred consideration of all economic demands
until after a union accountant examined Respondent's
books to verify its claim of financial hardship. On June 5,
after the accountant completed his audit, Figliuolo
withdrew union recognition and refused to bargain further
on the ground that four employees had told him they
opposed union representation . He also expressed his
intention to test the employees ' representation desires in a
Board-conducted election.
2. As the Supreme Court has stated in N.LR.B. v.
Gissel Packing Co., Inc., 395 U.S. 575, 596-599, although
an election is preferred , Section 9(c) of the Act permits
alternate routes for obtaining recognition, including
voluntary recognition through authorization cards. A
bargaining relationship established by voluntary recogni-
tion, even if oral and "never reduced to writing" is
"irrebutably presumed to continue for a reasonable time"
and the effect of such recognition is "no different from that
achieved as a result of a Board-certified election."
N.LR.B. v. Broad Street Hospital and Medical Center, 452
F.2d 302, 303 (C.A. 3); N.LR.B. v. Frick Company, 423
F.2d 1327, 1330 (C.A. 3).15 As pointed out in N.LR.B. v.
San Clemente Publishing Corp., 408 F.2d 367, 368 (C.A. 9),
where, as here , an employer voluntarily recognized a
union, held one bargaining session , and then withdrew
recognition , "To hold that only a Board-conducted
election is binding for a reasonable time would place a
premium on the Board-conducted election and would
hinder the use of less formal procedures that, in certain
situations , may be more practical and convenient and more
conducive to amicable labor relations."
3. At the hearing Respondent sought to justify its June
5 recognition withdrawal on the ground that it had
entertained a "good faith doubt" concerning the validity of
four cards . It asserted that its doubt was "based on a
number of things . The first is that three of the people were
so poor in English as to require translation , and we have no
proof that proper translation was granted them. And,
secondly, that by petition received by us later and signed
by exactly the same people who signed the cards , plus some
more , we were told not to honor the cards ." Figliuolo
added that employees had also complained to him that
they "had been told" they "couldn't work" in the plant
unless they signed the union cards.
As previously indicated (supra, fns . 8 and 12), Figliuolo's
testimony as to the number of men with language problems
that had "threatened" Ade and Solomon , the two he specifically named at
the heanng as reporting such threats . Thus , he testified , " I believe I asked
Mr Solomon . I'm not sure if I asked Mr. Ade or not ", yet in his June 8
preheanng statement he swore, "Mey [referring to Solomon and Kessel-
-claiming the latter as well as Solomon reported the threatening remark
although disclaiming this at the hearing ] would not tell me the name of the
person and I never asked them."
13 1 do not find it necessary to resolve the testimonial conflict as to
whether Silverstein again demanded recognition after the return of Fighuolo
and Watts to the plant on June 6: and, whether after a heated exchange,
Figliuolo on that day ordered Silverstein off company premises. It is clear
that Respondent already withdrew union recognition on June 5.
i4 The record does not disclose disposition of the RM petition In any
event , on July 13 , the Regional Director issued the complaint herein
is Accord Redmond Plastics , Inc, 187 NLRB No 60 , San Clemente
Publishing Corp , 167 NLRB 6. 8-9, enfd . 408 F 2d 367 (C A 9).
TOLTEC METALS, INC.
and subjected to alleged coercive statements is confusing;
although at times he stated or implied that more than two
employees fell in each category, he also asserted that no
more than two were involved in either group; admittedly
the individuals who reported the alleged misrepresentation
did not identify the perpetrators, i.e., whether they were
union agents, card solicitors, or fellow employees;16 and
that Figliuolo had not, prior to his June 5 recognition
withdrawal, disclosed to the Union the names of the
complaining employees.
Contrary to Respondent's contention, the question
whether or not the signatures on the cards were invalid and
induced by misrepresentations or coercion is a matter of
affirmative defense to be proven by Respondent, particu-
larly where, as here, the contention is raised after it had
extended union recognition.17 As the Board stated in Jem
Mfg., Inc., 156 NLRB 643, 645:
Although the General Counsel had the ultimate burden
of proving Respondent's bad faith on declining to
recognize the Union, we believe that he met this burden
in the first instance by his proof that Respondent had
checked the cards submitted, was satisfied that the
cards established the Union's majority, and, in reliance
upon such check, commenced bargaining negotiations.
The burden of going forward to overturn this prima
facie case then shifted to Respondent to show evidence
why the check was erroneous or why on other grounds
Respondent in good faith believed recognition was
mistakenly granted the Union.
This rule accords with the Supreme Court's approval of the
Board's Cumberland Shoe doctrine (144 NLRB 1268) in
Gissel, supra, 395 U.S. at 584, that "if the card itself is
unambiguous (i.e., unequivocally states on its face that the
signer authorizes the union to represent the employee for
collective bargaining purposes . . . ) it will be counted
unless it is proved that the employee was told that the card
was to be used" for another purpose. The Court reasoned,
"we think it sufficient to point out that employees should
be bound by the clear language of what they signed unless
the language is deliberately and clearly canceled by a
union adherent with words calculated to direct the signer
to disregard and forget the language above his signature
.... We . . . reject any rule that requires a probe of an
employee's subjective motivations as involving an endless
and unreliable inquiry." (305 U.S. at 606, 608). See also
Retail Store Employees Union Local 880 [Kinter Bros. Inc.]
v. N.L.R.B., 419 F.2d 329, 334-336 (C.A.D.C.).
It is clear that the unidentified misrepresentation upon
which Respondent relies-i.e., a mere assertion that
employees "had been told" of possible job loss if they
failed to sign cards-is not enough. It was incumbent upon
Respondent to show the fact of coercion. See Amalgamated
Clothing Workers [Hamburg Shirt Corp.] v. N.L.R.B., 371
F.2d 740, 744-745 (C.A.D.C.), enfg . 156 NLRB 511,
535-537; Kinter Bros. Inc., supra, 419 F.2d at 334-335.
Significantly, the targets of the alleged coercion (the
le As indicated (fn. 12), in his June 8 prehearing affidavit Figluolo stated
he "never asked " for their identity.
17 Indeed , Respondent acknowledged this burden in its answer to the
complaint (par. 8) where it averred that it proposed "to prove , by way of
955
employees) were present at the hearing , but none was
called to testify.
Nor did Respondent call any employees to support its
contention that the card signers (it identified only two)
.,were so poor in English " that they were unaware that they
had designated the Union to represent them . In any event,
the test is not whether the employee is literate or can read
the card , but "whether the purpose of the cards was
adequately communicated to the signers ." A. J. Krajewski
Mfg. Co. v. N. L. R. B., 413 F .2d 673, 677 (C.A. 1). "To hold
otherwise would . . . have the . . . effect of inhibiting
organizational efforts among workers who are perhaps
most in need of collective economic strength ." (Ibid.) It is
noteworthy that Respondent was well aware that it had
non-English-speaking employees when (on May 24) it
granted the Union recognition based on the authorization
cards ; and apparently it was satisfied that the validity of
the cards were not affected thereby . Evidently it found it
unnecessary to raise this issue until its need for a defense
became imperative.
4. Nor is there any merit in Respondent 's contention,
stressed in its brief (pp. 22-24), that under the principles
laid down in Gissel it is entitled to a Board election since
there is no evidence of any independent unfair labor
practices by Respondent . The short answer to this
contention is that the Gissel doctrine is here inapplicable.
In Gissel the Supreme Court was not concerned with a
situation like this one where the employer already had
recognized and bargained with a union (supra, sec. A, 1
and 2); Gissel involved only the question of an employer's
duty to extend initial recognition on the basis of authoriza-
tion cards . The Supreme Court agreed with the Board's
then policy that , in initial recognition cases, "an employer
can insist on a secret ballot election , unless . . . he engages
in contemporaneous unfair labor practices likely to destroy
the union 's majority and seriously impede the election."
395 U .S. at 600 . The test which Gissel lays down for
determining the propriety of a bargaining order where the
initial recognition claim rests on cards is irrelevant where,
as here , the Employer already has agreed to recognize the
Union on the basis of a card checkoff (supra, sec. A, 1).
Contrary to Respondent's contention (see Respondent's
postbrief letter received September 28), the Board 's recent
Wilder case18 reinforces rather than detracts from the
above principles. Based on its prior decision in Linden
Lumber Division, Summer & Co ., 190 NLRB 718., the
Board held that it will no longer issue bargaining orders
based on cards "or other circumstantial evidence"-unless
the parties voluntarily agreed to resolve majority status by
means of other than an election or where a fair election has
"been impeded by unlawful employee conduct." The
Board reiterated its prior Linden Lumber holding as
follows (190 NLRB at 721):
We repeat for emphasis our reliance here upon the
additional fact that the Respondent and the Union
never voluntarily agreed upon any mutually acceptable
and legally permissible means, other than a Board-
defense , that its recognition and bargaining with Ethel local was procured by
said local 's fraud practiced upon Respondent and its employees."
is Arthur E. Derse, Sr. and Wilder Mfg. Co., Inc., 198 NLRB No. 123.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted election, for resolving the issue of union
majority status. By such reliance we recognize and
encourage the principle of voluntarism but at the same
time insure that when voluntarism fails the "preferred
route" of secret ballot election is available to those who
do not find any alternative route acceptable.
Here, it is clear that the parties found an "alternative route
acceptable"-a card check-and it is on that basis that
Respondent recognized and agreed to bargain and bar-
gained with the Union.
5. The only remaining question is the effect of the
Union's loss of majority as evidenced by the employee
petition handed Respondent on June 8-15 days after the
Union's recognition and 6 days after the first and only
bargaining session. It is noteworthy that the sole expressed
reason advanced for the employees' withdrawal from the
Union was their feeling that the Company "is in no
position to meet the Union demands" 19-a fact which
Union President Silverstein himself frankly conveyed to
the men on June 5 when he reported to them the union
accountant's findings. Subsequent to this report to the men
Silverstein sought another meeting with Company Vice
President Figliuolo, with full knowledge of Respondent's
financial plight, but Figliuolo rejected his overtures.
As the Supreme Court long ago stated in Franks Bros.
Co. v. N. L. R. B., 321 U.S. 202, 205, and recently reaffirmed
in Gissel, supra, 395 U.S. at 613, 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." During this "reasonable period"
neither an attempt on the part of employees to revoke their
designations, nor a substantial turnover of personnel, will
justify an employer's refusal to bargain. See Franks, supra;
N.L.R.B. v. The Proof Company, 242 F.2d 560, 562 (C.A.
7); San Clemente Publishing Corp., 167 NLRB 6, 8-9, enfd.
408 F.2d 367 (C.A. 9); Universal Gear Service Corp., 157
NLRB 1169, enfd. 394 F.2d 396, 397-398 (C.A. 6). This is
not to say that Respondent is precluded from raising the
question of the Union's majority status at an appropriate
time in an appropriate way. See Franks and Gissel, supra. It
is to say that Respondent was under a legal obligation to
recognize and bargain with the Union for a reasonable
period. Here, Respondent rebuffed the Union's attempt to
resume negotiations after a single bargaining session. It
foreclosed the Union from offering its proposals in the
light of the Union's verification that the Company was in
poor financial condition. Under the circumstances it is not
surprising that the employees withdrew their designations
of the Union-possibly fearing unreasonable economic
demands by it from their Employer, or a sheer waste of
union dues. The employees' withdrawal petition-coming
as it did after Respondent's unlawful refusal to meet and
bargain-must be deemed attributable to Respondent's
unlawful conduct. I so find. Cf. Universal Gear Corp.,
supra; N.L.R.B. v. Decker, 296 F.2d 338, 342 (C.A. 8);
Broad Street Hospital, supra, 452 F.2d at 305-306; N. L. R. B.
v. Piezo Mfg. Corp., 290 F.2d 455, 456 (C.A. 2).
19 Neither the alleged coercion in procuring card signatures or claimed
inability to understand the meaning of the cards by non-English -speaking
employees was given as a reason.
20 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
Based on all of the foregoing and the entire record I
reject Respondent's contentions that its June 5 recognition
withdrawal was justified on the basis of a "good-faith
doubt" concerning validity of the authorization cards
signed by its employees; and I also reject its contention
that it is entitled to a determination of the Union's
representative status in a Board-conducted election be-
cause it committed no independent unfa ir labor practices. I
find and conclude that Respondent 's recognition with-
drawal and refusal to resume bargaining constituted a
violation of Section 8(aX5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. Local 569, Sheet Metal Workers International
Association, AFL-CIO, is a labor organization within the
meaning of the Act.
3. The following employees of Respondent constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed
at Respondent's Belleville , New Jersey, plant, but
excluding all office clerical employees , professional
employees , guards and supervisors as defined in the
Act.
4. At all times since May 24, 1972, the Union has been
and is the exclusive representative of all employees within
said appropriate unit for purposes of collective bargaining,
within the meaning of Section 9(a) of the Act.
5. By withdrawing recognition of the Union on June 5,
1972, and since that time refusing to meet and bargain with
the Union as exclusive representative of the employees in
the above-described appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(aX5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(aX5) and (1) of
the Act, I shall recommend that it be required to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Such
affirmative action will include the requirement that, upon
request, Respondent bargain collectively in good faith with
the Union as the exclusive representative of its employees
in the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 20
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
TOLTEC METALS, INC. 957
ORDER
Toltec Metals , Inc., its officers , agents , successors, and
assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Local 569, Sheet Metal Workers International Association,
AFL-CIO, as the exclusive representative of its employees
in the following appropriate unit with respect to rates of
pay, hours of employment, and other terms and conditions
of employment , and embodying in a signed agreement any
understanding reached:
All production and maintenance employees at its
Belleville , New Jersey , plant , but excluding all office
clerical employees , professional employees , guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with the
efforts of the above-named labor organization to bargain
collectively on behalf of the employees in the above-
described unit.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request , meet and bargain with the above-
named labor organization , as the exclusive representative
of all of its employees in the appropriate bargaining unit
with respect to wages , rates of pay, hours of employment,
and other terms and conditions of employment, and
embody in a signed agreement any understanding reached.
(b) Post at its place of business in Belleville , New Jersey,
copies of the attached notice marked "Appendix."21
Copies of said notice , on forms provided by the Regional
Director for Region 22, shall after being duly signed by
Respondent 's representative , be posted by Respondent
immediately upon receipt thereof , and maintained by it for
60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(c) Notify said Regional Director, in writing , within 20
days from the receipt of this Decision , what steps have
been taken to comply herewith.22
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
22 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 22 , in writing, within 20 days from the date of this Order , what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Toltec Metals, Inc.,
have violated the National Labor Relations Act, and we
have been ordered to post this notice and comply with its
terms.
The National Labor Relations Act gives you, as
employees, certain rights , including the right to self-
organization and to bargain collectively through a repre-
sentative of your own choosing.
Accordingly, we give you these assurances:
WE WILL bargain, upon request, with Local 569,
Sheet Metal Workers International Association,
AFL-CIO, as the exclusive bargaining representative of
all employees in the unit described below, and shall
embody in a signed agreement any understanding
reached. The bargaining unit is:
All production and maintenance employees at
our Belleville, New Jersey, plant, but excluding
all office clerical employees , professional employ-
ees, guards and supervisors as defined in the Act.
TOLTEC METALS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Building, 16th
Floor, 970 Broad Street, Newark, New Jersey 07102,
Telephone 201-645-2100.