Toolcraft Corp.

National Labor Relations Board - Board Decisions

Dec 13, 1950

92 N.L.R.B. 655 (N.L.R.B. 1950)

In the Matter of TooLCRAFT CORPORATION and DIE AND TOOLMAKERS
LODGE 113, INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. 13-CA-301.-Decided December 13, 1950
DECISION AND ORDER
On July 21, 1950, Trial Examiner David F. Doyle issued his Inter-
mediate 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.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions and modifications
noted below.
We agree with the Trial Examiner that the Respondent refused to
recognize and bargain with the Union, in violation of Section 8 (a)
(5) and 8 (a) (1) of the Act. However, we find that the Respondent's
unlawful conduct began, not on May 1, 1949, as found by the Trial
Examiner, but on February 22,1949, when the Respondent first clearly
indicated to the Union that it would not negotiate with that organiza-
tion concerning the execution of a new contract or the renewal of its
current agreement?
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Houston , Murdock,
and Styles].
' In establishing May 1 as the date of the Respondent 's initial unlawful refusal to bargain,
the-Trial Examiner apparently relied on the testimony of the Union' s representative that
the Respondent met with the Union and honored the existing contract with that organiza-
tion until the contract terminated on April 30. However, the Respondent 's letter of Febru-
ary 22, 1949 , which forestalled the operation of the automatic renewal clause of the existing
agreement , clearly expressed the Respondent ' s intention to refuse recognition to the Union,
and its refusal , on and after that date, to bargain with the Union concerning a new contract
or the renewal of the existing agreement , was violative of the Act. Cf. United States
Gypsum Company , 90 NLRB 964; Old Town Shoe Company, 91 NLRB 240.
92 NLRB No. 102.
655
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent excepts to the finding that its refusal to. bargain
was unlawful, principally on the ground that it had a good. faith
doubt as to the Union's majority status. In support of this exception,
the Respondent asserts that a number of employees expressed dis-
satisfaction with the Union; that the Respondent believed certain
employees had left its employ because of a desire to terminate their
affiliation with the Union; and that the Respondent timely requested
the Union to reestablish its representative status by Board certifica-
tion, and offered to consent to an election for that purpose. We find
no merit in these contentions.
. The Union's majority status was established by Board certification
on June 24, 1947. The continuation of this status is presumed con-
clusively for a reasonable period, usually 1 year after certification,
and indefinitely thereafter until rebutted .s We do not believe that
the circumstances relied on by the Respondent were sufficient to rebut
such presumption of continued majority status. It is significant that
the alleged dissatisfaction of the employees did not result in an
attempt to change or eliminate their bargaining representative by a
rival union or by a decertification petition 4 Nor did the Respondent,
while asserting that it desired a Board certification to resolve its
alleged doubt, seek to file an employer petition for that purpose, al-
though fully aware of the availability of such procedure. As we
recently held, under like circumstances :
... the Respondent's refusal to invoke the processes of the Act
to resolve its alleged doubts as to the Union's continuing represen-
tative status, indicates that these professed doubts were not raised
in good faith, but were motivated by a desire to avoid collective
bargaining.'
The Respondent's alleged good faith doubt as to the Union's repre-.
.sentative status is further impugned by its letter to the Union, dated
May 11, 1949. As set forth in the Intermediate Report, the Respond-
ent, in the course of that letter, detailed the economic burdens which'
it claimed to have resulted from its last contract with the Union, and
added : "It is for these reasons that we were obliged to terminate our
contract and withdraw recognition from the Union." Under all the
8 United States Gypsum Company, supra; N. L. R. B. v. Whittier Mills Company, et al.,
111 F. 2d 474 (C. A. 5).
4N. L. R. B. v. Irnolt Motor Co., 173 F. 2d 597 (C. A. 7).
5 United States Gypsum Company, supra. We do not adopt the implication of the Trial
Examiner that the Respondent was "required" to file a petition. Rather, as noted above,
we find that the Respondent's refusal and failure to invoke the Board's processes constitute
indicia of its lack of good faith. Cf..Heider Manufacturing Company, 91 NLRB 1185.,
The Respondent's reliance on the advice of its counsel that the Act "did not impose an
express duty" upon it to file such petition is clearly no defense. See West Texas Utilities
Company, Inc., 85 NLRB 1396, enfd. 184 F. 2d 233 (C. A. D. C.) ; General Motors Corpo-
ration, 81 NLRB 779.
TOOLCRAFT CORPORATION 657
circumstances, we conclude, as did the Trial Examiners that the Re-
spondent's refusal to bargain was not motivated by any good faith
doubt as to the Union's majority status, but by a desire to avoid what
it considered the onerous consequences of its statutory obligation to
bargain.
The Respondent also contends that the Union did not in fact repre-
sent a majority of the employees concerned, and that the Union
abandoned its representation of these employees. With regard to the
former, we have found above that the circumstances herein were insuffi-
cient to rebut the presumption of majority status arising from the
Union's certification. Moreover, as recently as April 1948, a substan-
tial majority of the employees authorized the Union to sign a union-
security contract, and even after the termination of that contract in
April 1949, all the employees in the unit continued to pay dues to the
Union. Accordingly, we find, like the Trial Examiner, that at all
times here material the Union represented a majority of the employees
in question.' With respect to the alleged abandonment by the Union,
the Employer's own attitude made it futile for the Union to attempt
to meet with it,$ and by the filing of charges with the Board, the Union
demonstrated that it was not abandoning the employees concerned .9
Under all the circumstances, we find that the Respondent, by ref us-
ing to bargain collectively with the Union on and after February 22,
1949, violated Section 8 (a) (5) and 8 (a) (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Toolcraft Cor-
poration, Chicago, Illinois, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
e As it appears that the Union may have been aware that the Respondent - allegedly ques-
tioned the Union's majority status before February 22, 1949, we do not adopt the Trial
Examiner 's finding that the failure to mention this alleged doubt in its letter to the Union
on that date rendered such reason an "afterthought ." Nor do we adopt his determination
that the Respondent 's mere contemplation of a wage decrease shortly after the union
contract expired proves that the Respondent 's refusal to bargain was motivated by economic
considerations.
7In so finding , we do not pass upon the propriety of the Trial Examiner 's refusal to
consider designations of the Union made during the term of the union -security contract.
8 Cf. Old Town Shoe Company , .supra.
' Cf. Intertown Corporation ( Michigan), 90 NLRB 1145 . In connection with the alleged
abandonment , the Respondent , in its brief , points to a letter to it from the Union, dated
July 12, 1950 , requesting a bargaining conference , and the Respondent ' s answer, dated
'July 10, 1950, refusing this request in the absence of proof of majority status. This corre-
spondence , even assuming it is properly before us , clearly does not establish that the
Union at any time abandoned the employees concerned.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain collectively with Die and Toolmakers
Lodge 113, International Association of Machinists, as the exclusive
representative of all toolroom employees at the Respondent's Chicago,
Illinois, plant, excluding all other employees, guards, and supervisors
as defined in the Act ;
(b) In any other manner interfering with the efforts of Die and
Toolmakers Lodge 113,. International Association of Machinists, to
bargain collectively with it on behalf of the employees in the aforesaid
appropriate unit.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Die and Toolmakers
Lodge 113, International Association of Machinists, as the exclusive
bargaining representative of all the employees in the aforesaid ap-
propriate unit, with respect to wages, rates of pay, hours of employ-
ment and other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement;
(b) Post at its plant in Chicago, Illinois, copies of the notice at-
tached hereto marked Appendix A.10 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for a period of sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered.by
any other material;
(c) Notify the Regional Director for the Thirteenth Region, ill
writing, within ten days from the date of this Order, what steps it has
taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL BARGAIN collectively, upon request, with DIE AND
TOOLMAKERS LODGE 113, INTERNATIONAL ASSOCIATION OF MACIIIN-
10 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," the words , "A Decree of
the United States Court of Appeals Enforcing."
TOOLCRAFT CORPORATION 659
ISTS, as the exclusive representative of all employees in the bar-
gaining unit described herein with respect to wages, rates of pay,
hours of employment , and other terms or conditions of employ-
ment and , if an understanding is reached , embody such under-
standing in a signed agreement . The bargaining unit is :
All toolroom employees at our Chicago , Illinois , plant,
excluding all other employees , guards, and supervisors as
defined in the Act.
WE WILL NOT in any other manner interfere with the efforts
of the above -named union to bargain collectively with us, or re-
fuse to bargain with said union as the exclusive representative
of the employees in the bargaining unit set forth above.
TOOLCRAFT CORPORATION,
Employer. .
Dated -------------------- By -----------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date hereof , and must not be altered , defaced, or covered by any other
material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Albert Gore, for the General Counsel.
Mr. Phillip D. Goodman of Chicago, Ill., for the Respondent.
Mr. Eric B. Bjurman of Chicago , Ill., for the Union.
STATEMENT OF THE CASE
Upon a charge filed on June 29, 1949, by Die and Toolmakers Lodge 113,
International Association of Machinists , herein called the Union , the General
Counsel of the National Labor Relations Board, herein called the General
Counsel and the Board respectively ,' by the Regional Director for the Thirteenth
Region ( Chicago, Illinois ) issued a complaint dated April 7, 1950, against Tool-
craft Corporation , Chicago, Illinois , herein called the Respondent or the Com-
pany, alleging that the Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (5 ) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended , 61 Stat. 136 , herein called the Act. Copies of the charge , complaint,
and notice of hearing thereon were duly served upon the Respondent and the
Union.
With respect to the unfair labor practices , the complaint alleged in substance :
(1) That all employees in the toolroom of Respondent 's Chicago plant except
'The representative of the General Counsel at the hearing is also referred to as the
General Counsel in this Report.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerical, supervisory, and all other employees of Respondent constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act; (2) that at all times mentioned in the complaint,
the Union has been the exclusive representative of all employees in the above-
described unit; (3) that on February 22, 1949, and at all times thereafter,
the Respondent has refused to bargain collectively with the Union as the ex-
clusive representative of the employees in the aforesaid appropriate unit; and
(4) by the foregoing conduct, Respondent has engaged in and is engaging in
unfair labor practices violative of Section 8 (a) (1) and (5) of the Act.
In its answer duly filed herein, the Respondent admitted: (1) The jurisdic-
tional facts set forth in the complaint as to the nature and extent of the Re-
spondent's business in interstate commerce; (2) that the Union, at all times
material to the issues, was a labor organization within the meaning of Section
2 (5) of the Act; and (3) that the unit as set forth in the complaint is appro-
priate within the meaning of Section 9 (b) of the Act, but denied the commis-
sion of any unfair labor practices.
The defense is that the Respondent had a bona fide doubt that the Union rep-
resented a majority of its employees in the unit, and that because of this doubt,
it refused to bargain with the Union until the Union proved its majority status,
and. that in view of all the circumstances existing at the time, it was justified in
its refusal to bargain.
Pursuant to notice, a hearing was held May 1-3, 1950, at Chicago, Illinois,
before David F. Doyle, the undersigned Trial Examiner duly designated by the
Chief Trial Examiner. At the hearing, the General Counsel and the Respondent
were represented by counsel and the Union was represented by its grand lodge
representative. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was accorded all
parties. At the close of the hearing, the undersigned granted a motion by the
General Counsel to conform the pleadings to the proof as to dates and minor
variations and reserved ruling on the Respondent's motion to dismiss the com-
plaint. The motion is hereby denied for the reasons hereinafter set forth. All
the parties were afforded opportunity to present oral argument at the close of
the hearing and to file briefs and/or proposed findings of fact and conclusions
of law with the undersigned. Counsel for the Respondent presented oral argu-
ment and later submitted a brief ; counsel for the General Counsel waived oral
argument but submitted a brief. Both briefs have been carefully considered.
- Upon the entire record in the case, and from his observations of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Tooleraft Corporation is an Illinois corporation having its principal office and
plant at Chicago, Illinois, where it is engaged in the manufacture of tools, dies,
jigs, and gauges, and such related items as a handy sander and a farm scraper.
Respondent, in the course and conduct of its business and in the operation of its
plant, annually purchases and uses raw materials valued in excess of $40,000,
of which approximately 20 percent is purchased from points outside the State of
Illinois,'and annually sells and ships quantities of its finished products valued
in excess of $100,000 to its customers in various States. Approximately 25 per-
TOOLCRAFT CORPORATION 661
cent of the finished products , so sold, is shipped from its plant in Chicago, Illi-
nois, to customers in other States . Respondent has conceded , and the under-
signed finds , that the Respondent is engaged in interstate commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Die and Toolmakers Lodge 113, International Association of Machinists, is a
labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. History of bargaining in the unit up to the alleged refusal to bargain
On June 16, 1947, the Regional Director for the Thirteenth Region conducted a
consent election in Case No . 13-R-4467 , pursuant to an agreement executed by
the Respondent and the Union . Results of this election were as follows :
Number of eligible voters------------------------------------- 26
In favor of the Union----------------------------------------- 13
Against Union ----------------------------------------------- 11
Challenged ballots--------- ----------------------------------- 1
Valid votes counted plus challenged ballots---- ----------------- 25
On June 24 , 1947, the Regional Director issued a consent determination of rep-
resentatives in which he determined that the Union was the exclusive represent-
ative of all the employees in the union . After three or four collective bargaining
conferences between representatives of the Respondent and the Union , the parties,
on July 3, 1947, executed an agreement , hereinafter called the first contract, in
which the Union was recognized as the exclusive representative of the employees
in the unit for the purposes of collective bargaining. The contract by its terms
covered rates of pay, hours of work, and other conditions of employment. This
contract also contained a provision entitled "union membership" which provided
that all regular employees would be required to be, and remain , members in
good standing in the Union as a condition of employment, and that all new em-
ployees would be deemed regular employees after employment for 30 days, and
required to be members in good standing in the Union thereafter.
On April 16 , 1948, the Board conducted an election in Case . No. 13-UA-579 on
the proposition of authorizing the Union to execute a union-shop contract with
the Respondent . This election was held pursuant to a consent agreement of the
parties. In this election , the vote was as follows : .
For authorizing the Union------------------------------------- 14
Against authorizing the Union -------------------------------- 3
Valid votes counted------------------------------------------ 17
In May 1948 the Respondent and the Union entered into collective bargaining
negotiations relative to a new contract . After several conferences , agreement
by the parties was finally reached on August 20 , 1948, and a new contract, here-
inafter referred to as the second contract , was executed on that date. Section 1
of this contract entitled "union membership ," was substantially the same as the
section on this subject in the first contract.
This second contract was negotiated and agreed upon in much the same
fashion as the first contract . The negotiations of the Union and this particular
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent followed a procedure used by the industry in the Chicago area. In
that area, the Union is bargaining representative of several thousand machinists
and apprentices working in the toolrooms and machine shops of many employers.
The testimony in the case is that many of the employers are members of the Tool
and Die Institute. The latter organization exists for purposes other than the
conduct of labor relations, but a subcommittee of the Tool and Die Institute
negotiates annually with the Union for the purpose of setting a pattern for
Chicago area shops on wages, hours, and conditions of employment in the tool
and die industry. These negotiations ultimately result in agreement on these
subjects. The agreement thus reached is not considered binding on the members
of the Tool and Die Institute, or anyone else, but it serves the purpose of setting
an over-all pattern for bargaining in the area. After agreement is reached
in the Tool and Die Institute negotiations, the Union and the individual em-
ployers negotiate, and reach agreement on the individual shop basis. In many
cases, the pattern is satisfactory to the parties and is adopted as the individual
contract ; in other cases the pattern with appropriate modifications is embodied
in a contract.
In the negotiation between the parties hereto, leading to the first and second
contract, the above procedure was followed, and this procedure has bearing on
the conduct of the parties in this proceeding, because, as it will hereinafter
appear, at one point in the controversy the Union took no action in regard
to the Respondent, but awaited the outcome of the Tool and Die Institute
negotiations.
Labor relations between the ,Union and the Respondent appear to have been
normal until the execution of the second contract. That instrument, however,
contained one feature that later occasioned disagreement. The Tool and Die
Institute negotiations in the spring of 1948 were long and protracted. How-
ever, the pattern when finally agreed upon provided for an increase in pay for
employees retroactive to May 1, 1948. In the Toolcraft negotiations in the same
year, the parties evidently bargained on the feature of retroactive pay, with the
Union finally accepting a contract providing for pay retroactive to July 22, 1948.
As will appear hereafter, this feature of the contract apparently was not satis-
factory to the men or union officials and later became a cause of friction.
However, the parties appear to have had amicable relations up to the spring
of 1949, when the second contract by its terms required renewal, modification,
or termination. On this subject, the second contract provided that it "shall
continue until April 30, 1949, and from year to year thereafter unless written
notice is given by either party hereto, to the other, on or before sixty (60) days
.prior to April 30, 1949, or April 30th of any subsequent year...."
The complaint alleges that on February 22,'1949, and thereafter, the Respond-
ent refused to bargain with the Union, the certified bargaining representative
of the employees in the unit.
The defense of the Respondent is that at this time it held a bona fide doubt
that the Union represented a majority of the toolroom employees, and that under
the circumstances it was justified in refusing to bargain.
B. The alleged refusal to bargain and the Company's alleged doubt in good faith
as to the majority status of the Union
The principal witnesses of both parties at the hearing were the persons who
had represented the Union and the Company in the conferences, negotiations,
and ,dealings which took place in the spring of 1948 and 1949. In these meetings,
TOOLCRAFT CORPORATION 663
Chester Hycner, business representative, was practically the sole representative"
of the Union. For a short period of time, Business Representative Rudolph
Paquet assisted Hycner. The representative of the Respondent, and practically
its sole representative, was its president, Walter P. Peterson. At times he was
assisted by his counsel, who presented the Respondent's case, Phillip D. Good-
man. Peterson died on January 16, 1950; thus the Respondent was deprived of
his testimony at the hearing.
Because Hycner is the only surviving witness to several of the incidents and
conferences hereafter related, and because of his exclusive representation of
the Union, his testimony is of the highest importance. Paquet testified as to
the relatively few incidents within his knowledge.
Goodman, counsel for the Respondent, and Hazen, its secretary, testified as
witnesses, furnishing the Respondent's position as to various incidents and
conferences.
The versions of the incidents and conferences furnished by all the witnesses
were substantially the same as to important features, such as the positions
taken by the Union and the Company at various times, and the events leading
up to the refusal to bargain. The witnesses differed only as to minor points
dealing with the exact words which were spoken by representatives of the
parties and other relatively minor details. The undersigned is convinced that
all the witnesses testified credibly in general and that the minor variations in
their testimony can be attributed to the unreliability of memory. At the time
the witnesses testified, they were 14 months removed from some of the events.
The undersigned has reconciled the testimony of all witnesses as far as possible
in reaching the findings of fact herein contained. Testimony which the under-
signed rejected is noted in this Report.
The facts established by the testimony are very clear. It is in the inferences,
which the parties drew from the facts, that the parties are in disagreement.
This disagreement is sharp, and springs from the defense which is based on
the bona fide doubt of the Respondent as to the majority status of the Union in
the unit. Respondent claims that the facts prove the genuineness of its doubt,
while the General Counsel argues that the same facts establish that the doubt
expressed by the Respondent was not genuine.
Chester Hycner was presented as a witness by the General Counsel. He
testified that during the period beginning March 1, 1947, and ending January
15, 1950, he served as local representative of Die and Toolmakers Lodge 113,
International Association of Machinists. This was an elective position which
was terminated when he was defeated in an election held within the Union on
December 9, 1949. At the time that he testified, he was employed by Masters
Machine and Tool Company of Chicago, Illinois. He was a member of the
Union prior to his employment by the Union in an official capacity, and he
remained a member after his term of office expired.
Hycner testified that as the 60-day period of, the second contract approached,
in the ordinary course of the mail the Union received a letter from the Company,
signed by Walter P. Peterson, president, dated February 22, 1949. This letter
read as follows :
Attn : Messrs : Chester Hycner and Rudy Paquet
In accordance with the provisions of Paragraph Eleven (11) of the col-
lective bargaining agreement entered into between our Company and Die
and Tool Makers Lodge #113, dated July 22, 1948, you are hereby notified
that the Toolcraft Corporation desires to terminate this agreement effective
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as of April 30, 1949. Accordingly, you are hereby advised that after April
30, 1949, we will not recognize your union as bargaining agent for our tool-
room employees.
Will you kindly acknowledge receipt of this notice of termination at your
earliest convenience.
,
On February 24, 1949, the Union over the signature of its recording secretary
sent a letter to the Company. The Union's letter read as follows :
GENTLEMEN: We are herewith giving you sixty (60) days notice of
our intent to modify the contract currently in effect between your company
and Die and Toolmakers Lodge 113, International Association of
Machinists. Enclosed is a copy of our proposed agreement which is being
submitted for your perusal prior to the. commencement of negotiations.
We should like to confer with you as soon as possible, so that we may
be in complete accord on the expiration date of our present agreement.
After this exchange of letters, Hycner called Goodman and Peterson and
finally arranged a conference with Peterson for March 23, 1949.
1. The conference of March 23, 1949, between Hycner and Peterson ; the alleged
dissatisfaction of the men ; the discussion of petitions
Hycner testified that on March 23, 1949, he conferred 'with Peterson at the
company offices concerning the exchange of letters mentioned above. Peter-
son told Hycner that there were a number of employees in the unit who had
informed Peterson that they were not being properly represented by the Union,
and that they no longer wished to be represented by the Union. Peterson
told Hycner that he doubted that the Union. represented a majority of the
employees in the unit, and for that reason the Company would not recognize
or bargain with the Union after the expiration of the second contract. Peter-
son requested the Union to file a petition for certification so that an election
might be held and indicated that the Company would consent to an election.
He asked Hycner how the Company, on its own initiative, might obtain an
election.
Hycner told Peterson that his attorney could tell him how to proceed to
obtain an election, but that, as far as the Union was concerned, it would.not
file a petition for certification of representatives because the international had
a policy of not granting such requests in the Chicago area. This policy was
based on the premise that if the Union granted Peterson's request, other em-
ployers in the Chicago area with whom the Union had contractual relations
would also request the Union to reestablish their majority status in an election.
Hycner told Peterson that if the latter desired to file a decertifcation petition
(the witness obviously meant RM petition), it was satisfactory to the Union.
Both men discussed the fact that some men in the unit were dissatisfied witll
the Union. Peterson said that some of the men had complained to him.
Hycner admitted that in the final 6 months of the second contract, employees
Osiekowski, Borowick, and Johnson had complained. to him about the way the
Union conducted their affairs. At the conference, Peterson and Hycner dis-
cussed this dissatisfaction. Peterson suggested to Hycner that an informal
election be conducted by Hycner and himself, but Hycner did not accept this
suggestion, and the substitute procedure was not thereafter discussed in
that conference.
TOOLCRAFT CORPORATION 665
Hycner testified that at this time there were approximately 10 men in the
unit. Payrolls of the Company, later introduced into evidence, conclusively
establish that for the payroll period ending February 25, 1949, and April 29,
1949, there were 9 employees in the unit.
In this conference , Hycner asked Peterson if he would agree to pay the wage
scale which would be established by the negotiations , between Tool and Die
Institute and the Union , which were then being conducted . Peterson answered
that he might pay the scale , if it was not $2 .50 per hour , as asked in the Union's
proposed contract . Since neither Hycner nor Peterson knew what the outcome
of the Tool and Die negotiations would be , this subject was not pursued further.
Hycner, on behalf of the Union , informed Peterson that the Union was still
the representative of a majority of the men.
On cross-examination , Hycner stated that he made no effort at this time to find
out if the Union was , at that time , the representative of a majority . He based
his claim of majority status to Peterson on the fact that it was his understanding
that the Union was the certified representative "until decertified." Hycner also
testified that none of the dissatisfied men took any steps to withdraw from the
Union, pointing out the fact that the contract between the Union and Employer
bad a provision for union security . Records of payment of dues by the nine
employees in the unit , which will be referred to hereinafter , show that all nine
men were members of the Union in good standing, and that these men continued
paying dues as members of the Union long after the second contract had expired
by its terms.
On cross-examination , Hycner testified that the Respondent did not refuse to
recognize , deal, or bargain with the Union , until after the expiration of the
second contract on April 30, 1949.
On cross-examination , Hycner was questioned about his efforts to obtain the
retroactive pay, hereinbefore mentioned, for the men in the form of a Christmas
bonus in December 1948 and about several men quitting simultaneously in Janu-
ary 1949. He testified he had no recollection of these incidents . Testimony con-
cerning these incidents was received from other witnesses and is related here-
after.
After this conference , there appears to have been no contact for a time between
the Union and the Company . Hycner explained that the negotiations between the
Union and the Tool and Die Institute were going forward and that the Union
took no action in regard to Toolcraft pending the outcome of these negotiations.
The Union and the Institute reached final agreement in their negotiations on
May 17, 1949. During this period of inactivity , the parties permitted the second
contract to expire according to its terms on April 30, 1949.
2. The proposed wage cut of May 2, 1949
The next meeting of the Company and the Union occurred around May 2, 1949.
The witnesses for the General Counsel on this point were James Fred Hayner,
former superintendent of the plant , and Hycner.
Hayner testified that at the time of the hearing, he was employed by the Three
Star Manufacturing Company as a tool and die maker , and that he had been
employed by Toolcraft from October 1947 to approximately May 1, 1949. He was
first employed by the Respondent as a tool maker, but on February 1, 1948, was
promoted to foreman of the toolroom , and on July 1, 1948 , to the position of plant
superintendent . As superintendent , he had charge of all employees of the Com-
pany except office workers.
929979-51-vol. 92-44
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hayner testified that on the last Friday in April 1949 , Peterson summoned
him to the company office . When he reached the office, Peterson and Goodman
were discussing a proposed wage cut for all toolroom and production employees.
He was questioned as to the probable reaction of employees in the toolroom to a
wage cut of 15 cents an hour. He gave as his opinion that the good men would
quit rather than take a. cut, but that the less efficient workers would accept it.
After some discussion , Hayner gathered the impression that Peterson authorized
him to broach the subject to the men on the following Monday morning . Hayner
told the conferees that he thought he could "sell the cut to the men."
On Monday morning, May 2, 1949, Hayner told the union steward in the tool-
room about the proposed wage cut, and then held a meeting of toolroom employees
and production workers at which he told the men of the proposed cut. Shortly
thereafter , Hycner and another union representative appeared at the toolroom
and addressed a meeting of the men.
On the next day, Peterson told Hayner that his wages as superintendent were
to be cut $25 a week. Hayner immediately told Peterson to get another super-
intendent as he quit , effective at the end of the week or as soon . as he could
instruct a successor in his duties.
On cross-examination , Hayner testified that he was and had been a member
of Local 113 since 1946 , and that Hycner had been instrumental in obtaining his
promotions by the Company . At the meeting with Peterson and'Goodman, the
financial situation of the Company and the necessity for the wage cut had been
explained to him. -
Hayner testified that he had been present part of the time at the conference
of Peterson and Hycner on March 23 , 1949. He stated that after Hycner left
that meeting , Peterson said to him , "I will get rid of that guy and his kind if it
is the last thing I do."
Hayner was sworn as a witness after the close of both the Respondent's and
General Counsel 's direct case . He was permitted to testify at that time on the
basis of the General Counsel 's explanation that Hayner's knowledge of events
was unknown to the General Counsel prior to the start of the hearing. The wit-
ness impressed the undersigned as being interested in assisting the Union by his
testimony , either out of gratitude to Hycner for managing his promotions, or
from resentment toward Peterson for cutting his wages , which effectively termi-
nated his employment . The undersigned credits the testimony of the witness as
to the facts that he discussed a wage cut with Peterson and Goodman and in-
formed the employees of the proposed wage cut and saw Hycner and the other
representative of the Union at the plant . However, the undersigned does not
credit the witness as to the alleged statement made by Peterson at the close of the
March 23 conference. That statement appears to be born of spite.
As to this incident , Hycner testified that on the particular Monday morning,
he was notified by the shop steward of the proposed wage cut and that he imme-
diately went to the plant . At the . plant he talked to the employees individually
and then held a meeting of the employees.
Peterson was not at the plant when Hycner arrived , but Peterson 's secretary
was informed of Hycner's arrival and called Peterson on the phone . In the tele-
phone conversation that followed , ltycner protested the wage cut , and Peterson
and Hycner became embroiled in a heated argument. Peterson ordered Hycner
out of the shop, stating that he had no right to go into the plant without per-
mission or to interrupt the men during working hours . After talking to Peterson,
Hycner called Goodman, attorney for the Company , who told Hycner that he
TOOLCRAFT CORPORATION 667
would talk to Peterson about not making the wage cut effective . On the next
day, Goodman called Hycner and stated that the wage cut would not become effec-
tive. At the end of the week, the employees were paid at the rate of the second
contract, the rate prevailing prior to the talk of the wage cut.
Neither the charge, nor the complaint , alleges a refusal to bargain based on the
action of the Company in regard to this proposed wage cut. At the hearing, all
parties adduced evidence as to the incident as being an event in the course of nego-
tiations between the parties. At the hearing , the General Counsel made no claim
that this incident constituted an independent refusal to bargain. From the testi-
mony, it appears that there is a question as to whether Peterson authorized
Rayner to inform the employees of the proposed wage cut, or whether in fact
such a wage cut was authorized . Goodman in his testimony, referred to later
herein, denies both propositions . The question was raised by the testimony but
was not thoroughly litigated , and as stated , not pleaded . For these reasons,
the undersigned will make no finding on this incident as constituting an inde-
pendent refusal to bargain , but will consider the incident as bearing on the issue
of the Respondent's good faith.
3. Mass withdrawal of employees January 1949
Rudolph Paquet, business representative of the Union , was presented by the
General Counsel as a witness . He testified that at the time of the hearing, he
was employed as business representative for the International Brotherhood of
Electrical Workers, AFL. He stated that he had been business representative
of the Union of which he also was a member . He was business representative
from July 1945 to January 15, 1950, at which time his services were terminated
because of his defeat in a union election.
This witness testified that he had participated in Toolcraft negotiations through
the years , which is evidenced by the fact that he signed both of the labor con-
tracts previously referred to. He stated , however, that Hycner was the prin-
cipal representative of the Union in charge of the Toolcraft contract after July
1948, and that after that date, he had very little to do with Toolcraft . However, in
December 1948 or January 1949, an incident occurred which required his action.
At that time , the superintendent of Toolcraft , a man by the name of Martin,
accepted a position in another plant. At the time Martin changed his employ-
ment, Martin planned to take with him to his new employer five or six tool and
die makers from Toolcraft . When Peterson learned of Martin's plan to take
employees with him, Peterson called Paquet. Paquet went to the plant and
called a meeting of the toolroom employees at a tavern near the plant. He ad-
dressed the employees and urged them to stay with Toolcraft . _ Due to his efforts,
one or two of the tool makers stayed with the Respondent , and only about three
employees left with Martin to accept employment with the other company.
Paquet also testified that he took part in the final negotiations with Toolcraft.
During the middle of March , Hycner requested his assistance in the Toolcraft
negotiations because Hycner was not getting along with Peterson . Paquet testi-
fied that after Hycner's request , he first called Goodman. When he asked
Goodman what was . wrong, Goodman said that the Respondent doubted that
the Union represented a majority of the employees in the unit and therefore
was refusing to recognize or bargain with the Union until the Union had proven
its majority . Paquet thereupon asked Goodman if it would be all right for
him to call Peterson . Goodman agreed. Paquet then called Peterson who said
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Chester Hycner had been rough in his dealings with Peterson , but that
Paquet and himself had always had friendly relations and that he was willing
to sit down and discuss the situation with Paquet . Peterson explained that
he was just about to leave on a trip to Washington which would take 3 or 4
weeks, and that when he returned , he would confer with Paquet . Paquet stated
that this conversation took place in late March.
Evidently the Union did not press the Respondent for a period of approxi-
mately 3 months , for Paquet testified that he did not call Peterson, after the
latter's trip , until late June or early July. In that period the second , contract
expired on April 30, 1949, and the Tool and Die negotiations reached agreement
on May 17, 1949.
It should also be noted at this point that on June 29, 1949, J. J . Denny,
grand lodge representative of the Union , filed the charge herein.
. According to Paquet , he next called Peterson in late June or early July for
the purpose of arranging a conference with him, but Peterson said that he was
busy and suggested that Paquet call again in about a week. A week or so
later, Paquet decided that he would go to the Toolcraft plant and see Peterson
without any appointment beforehand . When he . reached the plant, Peterson
was not in his office but was in the plant . Peterson was informed of Paquet's
arrival. When Peterson came to the office, he told Paquet that he should have
called up before he came, as he was busy at that particular time. Paquet
asked Peterson to set a date for a conference , and Peterson said, "call me
up in a week or so."
This completed Paquet's efforts in the Toolcraft matter, as he thereupon told
Hycner that he had done all that he could, and he returned the situation to
Hycner.
On May 11, the Respondent sent the following letter to the Union :
MAY 11, 1949.
GENTLEMEN : We have your letter of May 2, finally acknowledging our
letter of February 22 in which we exercised our prerogative to terminate
our contract at the expiration of its term on April 30, 1949.
The statements which you make in your letter are definitely erroneous.
You have completely misconstrued the entire facts. In your fourth para-
graph, you state that we asked for a guarantee that there would be no
labor trouble , and, in your third paragraph , you make reference to the fact
that we were contemplating the receipt of a large order and had to assure
our customer that there would be no labor dispute. To begin with, we
did not anticipate any labor trouble, and , secondly, we did not request
any guarantee.
Furthermore , you again imply, as you have in the past, that we would
adopt whatever program was established in the Tool & Die Institute Shops.
You will recall that you made a similar effort about one year ago and
attempted to urge that Toolcraft was a thember of the Tool & Die Institute
and was required to abide by whatever agreement the Institute Shops had
arranged with the Union . I wish to again set you right at this time. Tool-
craft is not a member of the Tool & Die Institute and will not be bound
TOOLCRAFT CORPORATION 669
by or involved in any contract which the Institute might make with Die and
'Tool Makers Lodge # 113.
On August 20, 1948, against my better judgment and good business sense,
I signed your contract which expired as of April 30, 1949. At that time,
I made it crystal clear that if the ensuing year's business resulted in further
losses, we would be obliged to terminate our contract. I also stressed the
-fact that we could not continue to lose money in our operations. You will
recall that in August, 1948, during the course of our negotiations, I expressed
my personal belief that the agreement proposed by your Union was totally
unrealistic in many important respects. I pointed out that the wage scale
imposed the requirement of paying rates which were completely unrelated
to the work being performed. Further, that such rates are responsible for
placing our industry in the non-competitive and embarrassing position which
it then found itself. During the period of time in question, our company
:sustained very substantial losses and the fears which we envisioned at that
time have come to pass. It is for these reasons that we were obliged to
.terminate our contract and withdraw recognition from the Union.
You will also recall that on March 23, 1949, when you came to my office,
I expressed a desire to have information concerning the procedure involved
in the holding of an election in our plant. Specifically I stated that I did
not object to Unions. My one specific complaint was that I could not con-
-tinue to pay Labor for unproductive days. You stated at that time,
"Workers are entitled to a livable wage." You also added, "Clock punchers
and not the employers are the ones who carry the present tax load." In
-addition, you went on to say that you did not see how the men would ever
consent to taking a cut in salary, even though living costs were down. At
that time, you expressed the fact that you would assist Toolcraft in obtain-
ing work and that as a result of your effort, it would be necessary to employ
at least fifty additional men. This work was to be obtained from Govern-
ment sources. I wish to add that I have in my file an entire transcript of
our conversation of March 23.
I also wish to take this opportunity to advise you to refrain from entering
.our plant in the future, unless express permission is granted to you for
such purpose. You have made it a point to be a very disturbing influence.
You have repeatedly violated all good decorum and have appeared at the
plant in my absence and have walked through our shop making derogatory re-
marks about me and displaying evidence of ill manners and improper con-.
-duct. When you visited our plant last week and our foremen teasingly asked
you if you were looking for employment, you replied, "No, but before we're
through, Mr. Peterson will be !" I had no appointment with you at that
time. My secretary succeeded in reaching me and I told her that I probably
would be tied up for the balance of the afternoon. I asked her to tell you
to call me. Inasmuch as our female office employees are not allowed in
the shop, she had the message relayed to you. When you telephoned, you
again displayed your ill manners. When I described my business appoint-
ments for that afternoon and explained that I was scheduled to' consult
with my patent attorney and electrical engineer, you made the remark,
"Before we are through with you, you won't have a place to make a
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
patent." I wish to assure you that any further conduct or remarks of this
character will not be countenanced.
In conclusion, I wish to remind you that our company has extended the
maximum cooperation to the Union in all matters. We have followed many
of your suggestions ; we have taken people out of our plant and have
elevated them to important positions. All this was done in an effort to
effect a harmonious relationship with the Union. In consideration of this,
you, on the other hand, have resorted to the exercise of improper conduct
and the making of derogatory remarks which were designed to injure the
Toolcraft Corporation. These reasons, as well as the impossible conditions
which you have endeavored to impose upon us, have led to the termination
of our agreement. It is also our feeling that no purpose will be served by
becoming involved in any misunderstanding with the Union. If the em-
ployees of this company desire to be represented by Died Tool Makers
Lodge #113 and an election is duty conducted by the 'National Labor Re-
lations Board, in which the required majority vote in favor of your Union,
you may be certain that we will, at such time, recognize your Union and
deal with you on behalf of such employees. (Emphasis supplied.)
Hycner testified that after the pattern for wages was set in the Tool and Die
Institute negotiations on May 17, 1949, that he personally never went back to^
the plant to confer with the Respondent. After Paquet's efforts, no further
efforts were made to obtain recognition or negotiate a contract with the Com-
pany.
Robert Tauber, an employee in the toolroom of Respondent, also testified as
a witness-for the General Counsel. He testified that he was a member of the
Union and employed by the Respondent as a tool maker. At the time of the
hearing, there were six employees in the toolroom. Employees Randick and
Borowick and himself had been with the Company some time ; the other em-
ployees were Graves, who had been employed for about 1 month, Rubow, who
had started on Monday of that week, and Kearney, who had started that
morning. These men at the time of the hearing comprised the unit in the tool-
room. This witness stated that he had never expressed any dissatisfaction with
the Union.
This witness testified that Superintendent Haynes told the employees of the
proposed pay cut of May 2 at a meeting, and that, after that, the men called the
Union. During the same week, the men learned that the pay cut would not
become effective.
The Respondent presented two witnesses, Phillip D. Goodman, attorney for
the Company, and Rowland M. Hazen, secretary of the Company. Goodman
presented the case for the Company and also testified as a witness. His testi-
mony substantially corroborated, with some amplification, the narrative of events
as furnished by Hycner. He testified that the Respondent had refused to recog-
nize or bargain with the Union after April 30, 1949, the expiration date of the
second contract, because the Respondent had a genuine doubt that the Union
represented a majority of its employees in the toolroom. He testified that Hycner
phoned him on March 1 or 2, 1949, and asked him about the letter dated February
22, 1949, which Peterson had sent to,the Union. In this conversation, Goodman.
told Hycner that Peterson had concluded that the Union had lost its majority
status in the toolroom and therefore the Company would not recognize or
bargain with the Union after the expiration of the 'current contract, until the
Union proved that it represented a majority of the toolroom employees. In this
conversation, Hycner told Goodman that he would like an opportunity to talk
TOOLGRAFT CORPORATION 671
with Peterson. Goodman agreed to this, and this talk became the conference of
March 23, 1949.
Goodman testified that on March 23, 1949, Peterson phoned him saying that
Hycner was at that time in Peterson's office discussing the matter of continued
recognition. Peterson asked Goodman to explain the Company's position to
Hycner. Hycner then took the phone and Goodman again explained the Com-
pany's position to Hycner. Goodman told Hycner that a number of employees
in the toolroom had expressed dissatisfaction with the Union, and that Peterson
also felt that the Union was responsible for the withdrawal of a number of
employees from the toolroom in January of that year, and for that reason, the
Company was not recognizing the Union. Goodman told Hycner that he, per-
sonally, also had doubts of the majority status of the Union, but that the
Company would be willing to continue to deal with the Union provided the
Union would establish it was the majority representative of the employees in the
toolroom. Goodman suggested that the Union file a petition for certification
of representatives, and stated that the Company would agree to a consent election.
Hycner replied that it would be contrary to the policy of the local to file a peti-
tion as it would set a precedent, and other employers in the tool and die industry
might be inclined to ask that similar petitions be filed.
Goodman also testified as to events leading up to the withdrawal of the
employees in the toolroom at the time of Martin's resignation. He testified that
the negotiations for the second contract were not concluded until August 20, 1948;
that in these negotiations the Union asked for increased pay retroactive to May
1, 1948. After considerable bargaining on the point, it was finally agreed by
the parties to make the increase retroactive to July 22, 1948. This was in the
nature of a compromise.
However, in the late fall of 1948, Hycner phoned Goodman saying that a
number of employees in the toolroom had complained about the fact that the
pay increase was not retroactive to May 1, 1948, and that the employees felt
they had lost this amount of money. Goodman replied that the employees
had lost nothing and that the Company had paid the employees all the wages
due them under the contract. Hycner then asked Goodman if Goodman thought
Peterson would pay the retroactive wages to the men as a Christmas bonus.
Goodman referred him to Peterson on that subject.
Rowland M. Hazen testified as a witness for the Respondent, as to Hycner's
and Peterson's conference on this subject. He testified that in the latter part
of August, or the first of September 1948, Hycner came to the Toolcraft plant
and conferred with Peterson in his presence. He testified that in this confer-
ence, Hycner stated that he wanted to get the difference in pay between May 1
and July 22, 1948, as a Christmas bonus for the men, and that Peterson told
Hycner that the financial condition of the Company would not permit such a
bonus. In the conference, Hycner stated that the men felt that they were
entitled to it, and that if they didn't get it, they wanted to go to other shops.
This witness testified that the next time the union representative came to the
plant was in January 1949. At that time, about five or six employees quit
simultaneously. When this occurred, Peterson called Hycner who came out to
the plant. Peterson asked Hycner why all the men left in a body, and Hycner
said he would investigate and find out. None of the employees who left ever
returned to Toolcraft. This occurrence took place at the time that Martin, the
superintendent, left the employ of the Company.
Goodman testified that Peterson blamed the Union for the mass withdrawal
of employees because Hycner had led the employees to expect a Christmas
bonus, in the amount of the retroactive pay, which was not paid by the Company.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goodman also testified as to the proposed wage cut of May 2, 1949 . He testi-
fied that on the Friday before that date, Peterson and he held a conference on
the subject of a plant-wide wage cut which would include supervisory officials.
In the course of the conference , they called in Superintendent Hayner. They
asked Hayner 's opinion as to what the effect of a wage cut would be upon the
men. Hayner informed them that the good men in the toolroom would quit,
but that the less efficient workers would accept a pay cut.
Goodman denied that either Peterson or himself authorized Hayner to
mention to the employees the fact that they were discussing a wage cut. Good-
man testified that on May 2, 1949, Hycner called him about the prospective
wage cut and that his first reaction ww as to ask Hycner who informed him
of the proposed wage cut. Hycner replied that Hayner had told him . Following
Hycner's phone call, Goodman talked by telephone to Peterson , and after con-
ferring with Peterson , phoned Hycner to inform him that there would be no
wage cut. Goodman in his testimony corroborated Hycner's testimony as to the
discussion concerning the rights of the parties to file various types of petitions
in i,presentation proceedings before. the Board. Goodman testified that the
Respondent requested the Union to file a petition for certification of representa-
tives. He also testified that the Union stated it would not file such a petition
for policy reasons, and in turn suggested that the Respondent file an RM petition.
Goodman testified that he conferred with Peterson at considerable length as to
the advisability of the Respondent filing an RM petition . On this point, Good-
man testified as follows :
The WITNESS . In connection with my testimony concerning my statement
to Mr. Peterson in the meeting of February 15, 1949, to the effect that the
Tooleraft Corporation could file a petition with the National Labor Relations
Board asking the Board to investigate the question concerning representation
in the manner provided by law, and to certify the results thereof, Mr.
Peterson in response inquired as to whether Toolcraft Corporation was
under a legal duty to file such a petition, and I stated to Mr. Peterson that
there was nothing in the law which imposed that duty upon the corporation
if the corporation actually had a genuine doubt as to the majority status
of the union at that time . Mr. Peterson stated that he had a genuine doubt,
and therefore , felt that since the company was under no duty to file, as-he
was advised , and further since the employees had expressed their desire
to him that the company not renew the agreement , or to continue to recognize
the union after the expiration of the current contract , that the company
would not file a petition.
Testimony was also received from Goodman as to the efforts made by a field
examiner of the Board to compromise the issues in the instant case prior to
the issuance of the complaint herein. The compromise proposed to the parties,
envisioned a withdrawal of the present charge by the Union , and the filing of an
RM petition by the Respondent . Several days after the compromise was sug-
gested by the field examiner , that official informed Goodman that the Union was
agreeable to the arrangement . Goodman relayed this information to Peterson,
and recommended , under the circumstances , that the Company file an RM petition.
The final decision of Peterson not to file an RM petition is embraced in Peter-
son's letter to Goodman dated December 22, 1949, which was introduced in
evidence as Respondent 's Exhibit No. 4. This letter is as follows :
DECEMBER 22, 1949.
I have considered carefully . your observations and recommendations con-
cerning the disposition of the pending case against Toolcraft Corporation
TOOLCRAFT CORPORATION 673
before the National Labor Relations Board and have concluded that we will
not file a petition.
Frankly, I do not agree with the wisdom or merit of the policy of the Board
to the effect that an employer cannot withdraw recognition from a labor
organization with impunity unless he obtains formal permission to do so
from the National Labor Relations Board. As you well know, we were
completely justified in withdrawing recognition from the union . Further-
more, if the union really represented a majority of our employees , they were.
free during this entire period of time , and even prior to the expiration of the
contiact , to file a petition for an election with the Board . Their failure
to do so corroborates the fact that they do not represent our employees.
I realize that if the Board issues a complaint that I shall be obliged to
participate in hearings and that ultimately an election may take place as
a result of a petition filed by the union. However, these prospects are not
within our control. As and when I am either voluntarily satisfied on this
question or should any proceedings instituted against us result in imposing
a 'recognizable legal duty to such effect , I then shall be governed accordingly.
In addition to the testimony of the witnesses , the General Counsel introduced
records of the payment of dues by the various employees in the unit. . This evi-
dence which will be discussed at length hereafter , establishes conclusively that
on May 1, 1949, and thereafter the Union was the representative of a majority
of the men in the appropriate unit.
Concluding findings
On the basis of the foregoing evidence , the General Counsel urges that the
allegation of refusal to bargain is sustained . From the same facts, the Respond-
ent argues that it is clear that the Respondent had a bona fide doubt that the
Union represented a majority of the employees in the toolroom , and that this
doubt was based on changed circumstances and conditions within and around the
unit, and that because of its genuine doubt, the Respondent was justified in
refusing to bargain with the Union . The issue is narrow , based on only two
elements : ( 1) The duty of the Respondent to bargain with the Union as the
certified representative of the employees in the toolroom ; and (2) the good faith
of the Respondent in its refusal to bargain.
In considering this evidence, there are certain facts I find have been estab-
lished. It is uncontested that the Union was certified as the exclusive bargain-
ing representative of the employees on June 24 , 1947, and that the Union again
demonstrated that it represented a majority of the men in the unit in the union-
authorization election of April 16, 1948. This latter mentioned election does
not renew or act as an extension of the certification , but it is evidence of the
majority of the Union at that time . It is also established that a contraction
in the number of employees in the unit had taken place in the course of time.
On June 16, 1947, the unit was composed of 26 employees ; on April 16, 1948, it
was composed of 17 employees ; at the date of the hearing, it was composed of
6 employees . There was no claim by Hycner, the union representative, in his
testimony , or by the General Counsel , in his presentation of the case , that this
contraction of the unit was caused by any improper action of the Respondent.
Apparently , this contraction was due to general economic factors.
One factor accelerating this contraction was the incident in which five or six
men withdrew from employment by the Company in January 1949. Evidently
these men were not replaced . Whether the concerted withdrawal of these men
was caused by their disappointment in not obtaining a bonus equal to the ret-
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reactive pay, or whether it was caused by Martin's offer to the men of better
jobs, or a combination of both, is not clear. But it is certain that they did
withdraw and evidently were not replaced.
It is undisputed in the testimony that three employees in the unit, prior-to
the refusal of the Respondent to bargain, had notified both the Union and the
Respondent that they were seriously dissatisfied with the conduct of their
affairs by the Union. There is no proof that the Company encouraged or incited
this dissatisfaction.
It is also undisputed that the Respondent requested the Union to file a peti-
tion for certification of representatives, and stated that it would agree to a con-
sent election.
The undersigned also finds that the Respondent fulfilled its obligation to
bargain, and honored its contracts with the Union until April 30, 1949, the
termination date of the second contract.
The Respondent argues that these facts, which the undersigned has found,
gave a basis to the Respondent for its bona fide doubt that the Union represented
a majority of the employees in the unit, and that because of this doubt, it is
justified in its refusal to bargain . The undersigned does not agree.
It is fundamental that an employer's duty to bargain with a certified repre-
sentative is absolute during the first year subsequent to certification. During
this period, the certification is not affected by changing circumstances within
the unit, whether the changes be in number of employees, their disposition to-
ward their representative, or any other like circumstance. However, with the
passage of time, the presumption that the certified representative is the ma-
jority representative of the employees, loses some of its force. Board and
court decisions agree that stability in labor relations demands that a certified
representative be permitted to represent the employees in a unit for the first
year after certification, undisturbed by any challenge to its majority. After
this year, however, the presumption of majority status becomes rebuttable, and
it is after the passage of this year that the efficacy of the certification becomes
obscure.
In N. L. R. B. v. Prudential Insurance Company of America, 154 F. 2d 385
(C. A. 6), the court had this to say concerning the Board's certification.
It is settled that a certification by the Board is entitled to a reasonable
period of existence, irrespective of the fact that conditions may have ma-
terially changed immediately after the certification. A contrary rule to
the effect that materially changed conditions, regardless of how soon they
occur, must immediately be recognized and translated into orders by the
Board would, as was said in N. L. R. B. v. Botany Worsted Mills, supra,
133 F. 2d at page 881, `make chaos out of the administration of the statute
and prevent the protection of the very rights which it aimed to secure'
A bargaining relationship once rightfully established should be permitted
to exist and function for a reasonable period during which it can be given
a fair chance to succeed. Since the Act does not prescribe the length of
time for which any certification shall remain valid, it has been held that
an. employer must recognize a certification rightfully given for a reason-
able period of time, regardless of materially changed conditions. `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.' Franks Bros.
Co. v. N. L. R. B., 321 U. S. 702, 705, 706, 64 S. Ct. 817, 819, 88 L. Ed. 1020;
N. L. R. B. v. Appalachian Electric Power Co., 4 Cir., 140 F. 2d 217, 221,
TOOLCRAFT CORPORATION • 675
222; N. L. R. B. v. Botany Worsted Mills, supra, 133 F. 2d 876, at page
882.
Until such changed conditions are reflected by a later ruling of the Board,
or by arbitrary refusal to act after a reasonable time, a valid existing
certification must be honored. The respondent had no right to make the
ruling that changed conditions invalidated the existing certification, such.
-right being exclusively in the Board.- Franks Bros. v. N. L. R. B., supra;
N. L. R. B. v. Appalachian Electric Power Co., supra.
The Board has defined the duration of its certification in Bethlehem Steel
Company, 73 NLRB 27.7 at page 279, as follows :
The respondent further contends that the Board failed to prove that the
Union represented a majority of the patrolmen on May 3, 1945, the date
of the alleged refusal to bargain, inasmuch as the Board's certification of
the Union, the sole proof of its majority status, had then become stale. We
find no merit in this contention. The certification, which we issued in July
1943, clothed the Union with status as the exclusive bargaining represent-
ative' of the patrolmen: Under general principles, and for purposes of
practical administration of the Act, such status is presumed to continue
until shown to have ceased or until such time as circumstances arise which
indicate that the presumption no longer holds true. (N. L. R. B. v. Whit-
tier Mills Company, 111 F. 2d 474 (C. A. 5).)
It is clear from the above decisions that after certification has run 1 year,
changed conditions or changed circumstances may result in extinction of the
presumption of majority status of the certified representative, and may result
in an appropriate proceeding in the termination of the certification itself.
Also the Board has stated in several cases that an employer is relieved of
his duty to bargain with a certified representative when the employer has a
bona fide doubt of the continuing majority status in the unit' However, the
undersigned does not agree that upon the facts here presented these decisions
of the Board can be accepted as authority justifying the Respondent's refusal
to bargain.
In order to determine the continuing effectiveness of the Board's certification,
let us examine the alleged changed conditions. While it is true that the unit
contracted between the time of certification and the date of the alleged refusal
to bargin, the men who remained in the unit were the identical men who had
participated in the representation and union-authorization elections. The con-
traction of the unit did not change the identity of the individuals who composed
the unit. The dissatisfaction which is proved was not so extensive as to lead
a reasonable individual to doubt the continued majority status of the Union.
Three men, Osiekowski, Borowick, and Johnson expressed dissatisfaction with
the Union. At the time of the refusal to bargain, during the period covered by
the payrolls in evidence, there were nine men in the unit. Osiekowski is not
listed on the payrolls. Evidently, he had left.the employ of the Company. At
the time of the refusal to bargain, the evidence is that two of the men of a total
of nine expressed dissatisfaction. This was approximately 22 percent of the
unit. A person of experience realizes that in all organizations or groups there
are always a few members who express dissatisfaction with the way the affairs
2 Sport Specialty Shoemakers , Inc., 77 NLRB 1011; Cu$man Lumber Co., Inc., 82
NLRB 296.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the group are conducted. The dissatisfaction of two members, of a total of
nine, would not appear to be more serious than the usual. grumbling ,in any
organization.
Even if the Union. were responsible, which is not. proven,. for the concerted
quitting of five or six men in January 1949, this does not change the union com-
plexion of those men who remained in the unit. In the opinion of the under-
signed, the alleged changed conditions in the unit were not of such gravity as to
form a substantial basis for a genuine doubt of the Union's majority status.
The Respondent urges that his conduct in the refusal to bargain is marked
by good faith.
From a consideration of all the evidence, and despite the very favorable find-
ings heretofore recorded, the undersigned finds that-the Respondent was under
a duty to bargain collectively with the Union as the certified representative of
its employees at the time of its refusal to bargain, and that its alleged doubt of
the majority status of the Union was not in good faith. This finding is based
on the following considerations among others. It is apparent from the evidence
that, by its conduct, the Respondent hoped to evade its duty to continue to bar-
gain collectively with the Union because its relationship with the Union had been
expensive and less profitable to the Respondent, and, therefore, the Respondent
decided to reject the principles of collective bargaining.
It is highly significant that the Respondent's letter of February 22, 1949,
terminating the second contract makes no mention of the Respondent's doubt
as to the Union's majority status. This letter merely terminates the contract
giving no reason for the action. Evidently, the Union did not know of the
Respondent's doubt until Hycner was informed of it by Goodman and then by
Peterson. This omission from the letter of February 22, 1949, gives the impres-
sion that the doubt of union majority was an afterthought ; that the primary
consideration was to terminate the contract, and that the doubt of majority
status was a convenient excuse. • Peterson's final letter of May 11, 1949, details
many of the Company's complaints with the Union. This letter 'attempts to
terminate the relationship existing between the Company and the Union and
states the following propositions: (1) That the Respondent is not a member of
the Tool and Die Institute and will not be bound by the Tool and Die In-
stitute negotiations ; (2) that the second contract was signed against 'Peterson's
better judgment, and that as he feared, it had worked out to the detriment of
the Company; (3) that the agreement between the employees in the tool and
die industry and the Union had taken the industry into the noncompetitive class
to the detriment of the industry; and (4) that for these reasons, the Company
was obliged to terminate the contract and withdraw recognition from the Union.
The letter of May 11, 1949, also complains of the conduct of the union represent-
atives and, it is only after all the foregoing, that the letter concludes with the
assertion that if the Union will prove its majority status, the Company will re-
sume bargaining relations with the Union. It is. apparent to the undersigned
from this correspondence that the termination of relations with the Union was
motivated not by a genuine doubt of the Union's majority status, but by a de-
sire of the Company to act independently, without the burdensome duty of bar-
gaining collectively. It is apparent that Peterson felt that his Company would
be more prosperous if not obligated to bargain and execute "unrealistic" contracts
with the Union.
The fact that the Company was motivated by economic factors in terminating
its relationship with the Union is proven by the proposed pay cut of May 2,
1949. Whether Hayner was authorized to inform the men of the proposed wage
cut or not is of very minor importance. However, the undersigned attributes
TOOLCRAFT CORPORATION 677
significance to the fact that, on the first working day after the termination of
the second contract, the Company discussed and was preparing to effect a pay
decrease of all employees . The fact that the Company was prepared to make
such a unilateral revision of pay rates , at that particular time, indicates that the
refusal to continue to bargain with the Union was prompted by a desire for
economic independence and not by any doubt of the Union ' s majority status.
The undersigned also finds that the refusal by the Respondent to file an RM
petition is evidence of bad faith in its -refusal to bargain. As pointed out previ-
ously, it has been the decision of the courts and the Board that certification
of a representative by the Board carries an irrebuttable presumption of ma-
jority status for the certification year, and that this presumption continues
thereafter "until such time as circumstances arise which indicate that the pre-
sumption no longer holds true." 3
As stated in N. L . R. B. v. Prudential Insurance Company of America, supra-
"until such changed conditions are reflected by a later ruling of the Board, or
by arbitrary refusal to act after a reasonable time, a valid existing certification
must be honored. The respondent had no right to make the ruling that changed
conditions invalidated the existing certification , such right being exclusively in
the Board ." Though some changes in conditions and circumstances within the
unit had occurred , these circumstances , in the opinion of the undersigned, did
not give the right to the Respondent to disregard the outstanding certification of
the Board and do nothing else. The certification came into being by a decision
of the Board under the legal procedure of the Act and, according to sound legal
principles , it must be terminated or extinguished by the Board under the pro-
cedure of the Act. -
At the time of the refusal to bargain, any one of three parties could have used
the representation procedure of the Act and brought the fundamental question
here contained to the Board for resolution . Any group of dissatisfied employees
could have filed a decertification petition ; the Respondent could have filed an
RM petition ; and the Union could have filed a petition for certification . In view
of the evidence of union adherence , considered in the next section of this Re-
port, it is apparent that none of the men were dissatisfied to the point of filing
a decertification petition . Hycner, as union representative , ineptly stated the
Union's reason for refusing to file a petition to be the union policy based on the
effect of such a petition on other employers .. He had a far better reason for
refusing to file a . petition , but he did not emphasize that reason , namely, that
the Union was then the certified representative . Prior to its certification as
representative , the Union had invoked the representation procedure of the Board
and had qualified : and been designated as exclusive representative of the em-
ployees in the unit. Hycner seems to have had such an idea in mind when he
stated that his Union was the certified representative until someone filed a
"decertification petition ." Though somewhat confused in terminology, he had
much the same thought as that expressed by the court in N. L. R. B. v. Prudential
Insurance Company . of America , supra, namely, that Board certification endures
until ended by the Board . Under the circumstances existing at the time, the
Union was the certified agent. It had nothing to gain by filing a petition except
to satisfy the alleged doubt of this Respondent . As the possessor of the Board's
certification , won in a representation proceeding , the Union in effect said-we
have the Board's certification and if you deem the certification invalidated by
changed conditions , it is your right to file a petition with the Board ,' prove the.
changed conditions in a representation proceeding , and let the Board decide
3 Bethlehem Steel Compa ;vy, supra.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether or not conditions are changed sufficiently to warrant a termination of
our certification and the holding of a new election.
The cases dealing with the defense of bona fide doubt arose prior to the amend-
ment of the Act. Before the amendment, an employer, in a case such as this,
where only one union claimed to represent the employees, had no right to file
a petition which would start the representation machinery of the Board in.
motion. Under the Board's rules prior to the amendment of the Act, an employer
could file a petition for certification only when two or more unions claimed. to.
represent his employees. Occasionally it occurred that the certified representa-
tive lost its majority standing in a unit and no second union claimed to represent
the employees. In these circumstances, the employer's only courses of action
were to either bargain despite his doubt of majority, or express his doubt and.
refuse to bargain and await unfair labor practice charges against him, during:
the trial of which he could prove his doubt founded on changed conditions as a
defense to the complaint. Under the amended Act, this situation is hasicly-
chamged. Now under these circumstances, the employer can file a petition and.
present what he claims is a question concerning representation to the Board.
An employer need no longer bargain while in doubt of the union's status or
refuse to bargain at the peril of charges of unfair labor practices. Now, under
the authority of many cases 4 the employer may file an RM petition and obtain
an election to resolve his doubts. The only action required of the employer is.
that he initiate the proceeding by filing the petition.
The right to file an RM petition puts this Respondent in an entirely different
position than 'employers in like circumstances prior to the amendment of the
Act. This Employer had ready to his hand the legal machinery by which his
doubt could be resolved by investigation and certification of representatives.
It is true that the Act itself does not expressly place the duty on an employer
to file an RM petition in appropriate circumstances. But since the present Act
affords the employer a right and remedy by which his doubt can be resolved,
the employer's conduct in refusing to avail himself of this right is necessarily
evidence of his good or bad faith.
If the Respondent's failure to bargain was prompted by genuine doubt of the
Union's majority status, the Respondent had merely to file an RM petition to
obtain a resolution of his doubt by a Board-conducted election. This simple step
the Respondent refused to take, and the. undersigned finds that this refusal
is evidence of the bad faith of the Respondent.
In this case, the union, possessor of the Board's certification, assumed the
position that it was the certified representative until action of the Board termi-
nated the existing certification. That position seems to be based on firm legal
principles. By legal procedure including an election, it had won certification by
the Board. When the Employer challenged its majority status, it had a right
to say to the challenger, file an RM petition and when required to do so, we
will prove our majority in an election. But in this case, the Employer refused
to file the RM petition. Goodman, counsel for the Respondent, testified that
he advised the Respondent that it was under no duty to file an RM petition under
the Act, and on his advice it did not file an RM petition. But, did not the Act
itself, by implication, require that the Respondent file the petition?
Under the procedure of the Act, the certification of the Union was issued.
The certification carries a presumption of majority status "until shown to have
ceased, or until such circumstances arise which indicate that the presumption
Continental Southern Corporation, 83 NLRB 669; Whitneys, 81 NLRB 75 ; J. C. Penney
Company, 86 NLRB 920.
TOOLCRAFT CORPORATION 679
no longer holds true."' When the Employer said in effect that circumstances
had arisen which indicated that the presumption no longer held true, he took
the affirmative of that proposition and the legal burden of initiating the legal
proceeding to terminate the certification, fell upon him under all legal principles.
Under the Act, the appropriate legal proceeding that he could have taken
was to file an RM petition. Instead however of discharging his obligation, and
asserting his legal right, he chose to take no action, and stand on his own per-
sonal decision, and to refuse to bargain with the representative of his employees,
who held the certification of the Board.
The effect of the Respondent's refusal to file an RM petition is manifest-since
April 30, 1949, the representative certified by the Board has not been recognized,
and the Respondent has not had bargaining relations with anyone represent-
ing the employees in the unit. The Respondent deliberately chose the course
that left its doubt unresolved, the one course that would result in unstable labor
relations, and the one course by which, at least temporarily, it relieved itself of
its duty to bargain collectively with anyone. Of course, in filing an RM petition,
the Respondent ran the chance that his doubt was groundless, and that the
Union was the majority representative in the unit. The Respondent evidently
was unwilling to run the risk that an election would prove the Union's majority
status and lead to the necessity of further relations with the representative of
its employees. From all the evidence, I find that the Respondent, by its refusal
to bargain, has sought to escape its duty, under the Act, to bargain with the
certified representative of its employees, and has seized upon minor circum-
stances such as the contraction of the unit, the mass quitting, the expressed
dissatisfaction of a minority, to give its unlawful action the guise of legality,
I find that the Respondent's refusal to bargain is not justified and is a violation
of Section 8 (a) (5) of the Act.
The union representative, Hycner, testified that the Respondent did not refuse
to bargain prior to the expiration of the second contract on April 30, 1949.
Therefore, I find that the violation of Section 8 (a) (5)"of the Act occurred on
May 1, 1949.
C. The appropriate unit
The complaint alleges that the following employees constitute a unit appro-
priate for the purposes of collective bargaining : All employees of the toolroom
except for office and clerical employees, supervisors with authority to hire, dis-
charge, discipline, or effectively recommend such action, and all other employees
of the Respondent. The answer of the Respondent admits this allegation of
the complaint.
The Board found this unit appropriate in Case No. 13-R-4467 involving the
same parties, the case in which the Union was certified. I find the unit appro-
priate for the purposes of collective bargaining.
D. Proof of Union's majority in the unit
The General Counsel introduced into evidence two lists of employees in the
unit. One list contained the names of employees for the pay period ending
February 25, 1949, and the second for the pay period ending April 29, 1949.
Both lists contained the same number of employees-nine, and the same names-
Randick, Borowick, Hendrickson, Szymanski, Johnson, Weirick, Jelinek, Mc-
Kenzie, and Tauber.
E Bethlehem Steel Co., Supra.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of the men so named, Hycner testified that Borowick and Johnson expressed
dissatisfaction with the Union. Osiekowski, who was named as dissatisfied by
Hycner, evidently left the employ of the Respondent prior to February 25, 1949.
Employee Tauber in his testimony stated that at the date of the hearing, the
unit was composed of three older employees-Randick, Borowick, and himself-
their names are on the payrolls, and three new employees-Graves, employed
about a month, Rubow, who started on Monday of that week, and Kearney, who
started on the morning of the day on which Tauber testified.
As proof of the majority status of the Union, the General Counsel introduced
the office records of the Union showing the payment of periodic dues by the
employees. Alberta Lile, of the union office staff, testified to the authenticity
and accuracy of these records. The General Counsel and counsel for the
Respondent questioned the witness about the timeliness of the payment of dues
by the men, as being some evidence of dissatisfaction within the unit. The
undersigned is not persuaded that such evidence has probative value, because
the union bylaws provide a 3-month grace period, during which dues may be
paid, without the member being declared delinquent. The cards show that all
men listed on the payroll lists were members in good standing, although a few
were tardy in paying dues, during the period with which we are concerned. Of
the new men mentioned by witness Tauber, there are cards for Rubow and
Kearney. These cards show that these two employees were dues paying mem-
bers of the Union prior to their employment at Toolcraft. No card was intro-
duced into evidence for employee Graves.
These cards, containing a record of the payment of dues by the individual
members, are the only proof offered by the General Counsel to establish that
at the time of the refusal to bargain, the Union represented a majority of the
employees in the unit.
This type of evidence, a record of dues payment, in view of the union-security
provisions in the contract between the Union and the Respondent, raises an-
other problem-for that period during which membership and the payment of
dues were required as a condition of employment.
During the tenure of employment all employees, except Graves, have been
members of the Union and paid their dues. It is clear from the provisions of
the union-security clause, that membership and the payment of dues is compul-
sory under the contract, as a condition of employment. The record of the
'individuals' payments of dues, required by this compulsory provision, is here
presented to the Board as proof of the free untrammelled designation of the Union
as bargaining representative. For the period covered by the second contract,
I cannot accept these records as adequate, sufficient evidence of the Union's
continuing majority status in the unit.
The records of payment of dues are offered in evidence to prove that the Union
has continued to be the voluntarily, freely chosen representative of a majority
of the men in the appropriate unit. When we scrutinize these records as evi-
dence, we readily discern that the records are deficient in the quality required
as proof-namely, they do not possess the quality of voluntariness. The dues
were paid under compulsion of the contract and the law; individually they are
not evidence of the individual's free and voluntary designation of the Union as
his representative, and the quality which the records lack individually, they
must lack in the aggregate.
In many cases, the Board has accepted union cards or records as evidence
establishing the voluntary designation of the Union as bargaining representative.
Designation cards bearing the signature of the designator have been accepted.
Authorization cards, even when unsigned, but accompanied by testimony that
TOOLCRAFT CORPORATION 681
the individual meant the card as a designation of the Union, have been accepted.
The Board has accepted all kinds of cards, writing, and memoranda as evidence
of the individual 's designation of his bargaining agent, as long as the writing,
card, or memoranda possessed one evidentiary quality-it was the voluntary
act of the individual concerned, and constituted his manner of manifesting his
free, untrammelled , uncoerced choice of bargaining agent. Such evidence is
proper ; indeed it is often the very best evidence because it is a permanent written
record of the individual's free choice. But the instant records of payment of
dues, based on a membership required by contract with the sanction of law, do
not possess the essential quality-voluntariness, which gives them probative
value as evidence of a union's majority, voluntarily and freely expressed. The
evid'e'nce of the union-security clause present in this record destroys any valid
claim that these dues were voluntarily paid. The infirmity in the evidence
springs from the very-nature of the payments, which are compulsory under the
Contract.
However, the records of payments extend beyond the contract period, which
ended April 30, 1949. After that date, when the second contract between the
Union and the Respondent expired, the nine men in the unit-Borowick, Hen-
drickson, Jelinek, Johnson, McKenzie, Randick, Szymanski, Tauber, and Weir-
ick, continued to ' pay their dues. These men continued to be members of the
Union in good standing and continued to pay dues up to the time of the hearing.
At the time of the hearing, there were six men in the unit. Five of these
men were dues paying members of the Union in good standing. Graves is the
only employee for whom a record of dues paid record was not offered in evidence.
Payment, of dues and membership in the Union were not required as a
condition of employment after April 30, 1949. This evidence of voluntary pay-
ment of dues and membership in the Union, is adequate proof of the Union's
majority after that date. Therefore, I find that at the time of the refusal to
bargain on May 1, 1949, and thereafter, the Union represented a majority of
the employees in the appropriate unit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in
connection with the operations of Respondent described in Section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
it will be recommended that the Respondent cease and desist therefrom and
that it take certain affirmative action designed to effectuate the policies of the
Act. Having found that the Union represented and now represents a majority
of the employees in the appropriate unit and that the Respondent has refused
to bargain collectively with it, the undersigned will recommend that the Re-
spondent upon request bargain collectively with the .Union.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Pie and Toolmakers Lodge 113, International Association of Machinists,
is a labor organization within the meaning of Section 2 (iii) of the Act.
929979-'51-vol. 92-45
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. All employees of the toolroom, excluding office and clerical employees,
supervisors with authority to hire, discharge, discipline, or effectively recom-
mend such action, and all other employees of the Respondent at its Chicago, Illi-
nois, plant, constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. Die and Toolmakers Lodge 113, International Association of Machinists
was, on May 1, 1949, and at all times thereafter has been and is, the exclusive
representative of all the employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
4. By refusing on May 1, 1949, and at all times thereafter, to bargain col-
lectively with Die and Toolmakers Lodge 113, International Association;, of
Machinists, as the exclusive representative of all its employees in the aforesaid
appropriate unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (5) of the Act, as amended.
5. By the aforesaid refusal to bargain, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act, as amended.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]