Globe Automatic Sprinkler Co. of Pennsylvania

National Labor Relations Board - Board Decisions

Jul 18, 1951

95 N.L.R.B. 253 (N.L.R.B. 1951)

GLOBE, AUTOMATIC SPRINKLER COMPANY OF PENNSYLVANIA 253
ordering the Respondents to cease and desist therefrom and to take
certain affirmative action.
On June 6, 19511 the Respondents filed a Motion for Reconsideration
of Decision and Order. No responses in favor of or in opposition to
the motion were received from the Union or the General Counsel 2
The motion alleges, inter alia, that "the Board lacks jurisdiction
to proceed with the case in contravention of Section 9 (h)" of the
Act. We find no merit in this ground, nor in the other grounds stated
in the motion which raise no new matter not previously considered by
the Board in the Decision and Order.
The Union filed its charge herein on August 3, 1949, and the Board
issued its complaint on March 28, 1950. We have administratively
determined that the charging Union, as well as its parent federation,
the Congress of Industrial Organizations, were in full compliance
with the filing requirements of Sections 9 (f), (g), and (h) of the Act
substantially in advance of the issuance of the complaint in this
proceeding.3 Accordingly, we shall deny the motion.
Order
IT IS HEREBY ORDERED that the Respondents' motion for reconsidera-
tion be, and it hereby is, denied.
2 The Respondents ' request for oral argument before the Board is denied as we believe
the issues and the position of the Respondents are adequately presented.
8 See Southern Fruit Distributors , 80 NLRB 1283 , and H & H Manufacturing Company,
Inc., 87 NLRB 1373 , in which the Board held that the Act requires compliance at the
time of the issuance of the complaint , rather than at the time of the filing of the
charge . See also N . L. R. B. v. Highland Park Mfg. Company, 71 S. Ct. 758.
GLOBE AUTOMATIC SPRINKLER COMPANY OF PENNSYLVANIA and DIS-
TRICT LODGE #1, INTERNATIONAL ASSOCIATION OF MACHINISTS. Case
No. 4-CA-410. July 18, 1951
Decision and Order
On April 10, 1951, Trial Examiner Frederic B. Parkes 2nd issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate 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
I 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 , Reynolds,
and Styles].
95 NLRB No. 42.
254 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
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 following additions and modi-
fications :
We agree with the. Trial Examiner that the Respondent violated
Section 8 (a) (5) and (1) of the Act when, on May 4, 1950, it, termi-
nated its negotiations with the Union because of the filing of a decerti-
fication petition. As the Board stated in Southern Block and Pipe
Corporation,2 "An employer is obligated to bargain with a certified
union during the certification year, regardless of the imminence or
actual pendency of a decertification petition." We, accordingly,. find
that on May 4, 1950, and thereafter, the Respondent unlawfully re-
used to bargain with the Union; in violation of Section 8 (a) (5) and
(1)^ of the Act.
However, we do not agree with the.. Trial Examinerr's finding that
the preponderance of the evidence establishes that the Respondent
failed to bargain in good faith with the Union prior to May 4, 1950.3
Upon the entire record in this case, and pursuant to Section 10' (c)
of the National Labor Relations At, as amended,. the National Labor
Relations Board hereby orders that the Respondent, Globe Automatic
Sprinkler Company of Pennsylvania, Philadelphia, Pennsylvania,. its
officers, agents,. successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with District Lodge #1, Inter-
iiational Associationi of Machinists as the exclusive representative of
all production; maintenance, and shipping employees at its Phila-
delphia, Pennsylvania, plant, exclusive of all office clerical employees,
technical and engineering employees, guards, watchmen, professional
employees, and all supervisors as defined in Section 2 (11) of the Act.
(b) In any manner interfering. with the efforts of District, Lodge
1;. 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 firidg, will
,effectuate the policies of the Act:
2 90 NLRB 590.
8 Member Styles concurs in the findings of his colleagues that the Respondent violated
Section 8 ( a) (5) and (1) of the Act on May 4, 1950, and thereafter . He would, however,
end, in addition , like the Trial Examiner, that the Respondent first violated Section 8
(a) (5) and ( 1) by its failure to comply with the Union's request on January 9, 1950,
that the Respondent designate a representative to conclude negotiations with the Union,
snd by the Respondent 's subsequent handling of negotiations with the Union.
GLOBE, AUTOMATIC SPRINKLER COMPANY OF PENNSYLVANIA 255
'(a) Upon request, bargain 'collectively with District Lodge #1,
International Association of Machinists as the exclusive representa-
tive'of all its employees in the appropriate unit described above, with
respect to rates.of pay, wages, hours of employment, and other con-
ditions.of employment, and if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its Philadelphia, Pennsylvania, plant, copies of 'the
notice attached hereto marked "Appendix A." 4 Copies of said notice,
to be furnished by the Regional Director for the Fourth 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 sixty (60) consecutive days thereafter, in conspicuous places,,
including all places where notices to employees are. customarily posted..
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director of the Fourth Region, in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
Appendix A
NOTICE TO ALI, EMiPLOYEES
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, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with DISTRICT LODGE:
#1, INTERNATIONAL ASSOCIATION OF MACHINISTS as the exclusive-
representative of all employees in the bargaining unit described
herein with respect to wages, rates of pay, hours of employment,
and other terms or conditions of employment and if an under-
standing is reached, embody such understanding in a signed'
agreement. The bargaining unit is:
All production, maintenance, and shipping employees at our
Philadelphia, Pennsylvania, plant, exclusive of all office clerical
employees, technical and engineering employees, guards, watch-
men, professional employees, and all supervisors as defined ila:
the Act.
Wl WILL NOT in any manner interfere with,, the efforts of
DISTRICT LODGE #1, INTERNATIONAL ASSOCIATION OF MACHINISTS.
4 If this Order is enforced by a decree of a Unite d States Court of Appeals , the notice-
shall he amended by inserting before the words, "A Decision . and. Order ," the words,
"A Decree of the United States Court of Appeals Enforcing_"
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain collectively with us on behalf of the employees in the
aforesaid unit.
GLOBE AUTOMATIC SPRINKLER COMPANY
OF PENNSYLVANIA.
By ----------------------------------------
(Representative ) ( Title)
Dated ---------------- ---- -
This notice must remain posted `for x:60 days from the date -hereof
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by District Lodge #1, International Association of
Machinists, herein called the Union, the General Counsel of the National Labor
Relations Board,' by the Regional Director of the Fourth Region (Philadelphia,
Penisylvania), issued a complaint dated November 9, 1950, against Globe
Automatic Sprinkler Company of Pennsylvania, herein called the Respondent,
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 charges, complaint, and notice
of hearing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that (1) since on or about May 31, 1949, and at all times thereafter, the Respond-
ent refused to bargain collectively with the Union as the exclusive bargaining
representative of the Respondent's employees within an appropriate bargaining
unit, although a majority of the employees had designated or selected the Union
as their statutory representative in an election conducted by the Board on May
4, 1949, although the Union had been certified by the Board as the exclusive
bargaining representative of the employees in the bargaining unit on or about
May 25, 1949, and although the Union had requested the Respondent to bargain
collectively with it as the statutory representative of the employees on or about
May 26, 1949; and (2) by the foregoing conduct, the Respondent has engaged in
unfair labor prattles within the meaning of Section 8 (a) (1) and (5) and
Section 2 (6) and (7) of the Act.
Thereafter, the Respondent duly filed an answer denying that it had engaged
in the alleged unfair labor practices. Pursuant to notice, a hearing was held
on November 28 and 29, 1950, at Philadelphia, Pennsylvania, before Frederic B.
Parkes, 2nd, the undersigned Trial Examiner duly designated by the Chief
Trial Examiner. The General Counsel and the Respondent were represented
by counsel and the Union by official representatives. Full opportunity to be.
heard, to examine and.cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties.
At the conclusion of the hearing, the undersigned granted a motion by the
General Counsel to conform the pleadings to the proof as to dates, spelling, and
minor variances. Upon the conclusion of the hearing, the undersigned advised
the parties that they might argue before, and file briefs or proposed findings of
' The General Counsel and his representative at the hearing are referred to as the
General Counsel. The National Labor Relations Board is herein called the Board.
GLOBE; AUTOMATIC SPRINKLER COMPANY OF PENNSYLVANIA 257
fact and conclusions of law, or both, with the Trial Examiner. The General
Counsel and the.Respondent participated in oral argument. Thereafter, the
Respondent filed a brief and proposed findings of fact and conclusions of law'
with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Globe Automatic Sprinkler Company of Pennsylvania, a Pennsylvania corpo-
ration, is engaged in its plant at Philadelphia, Pennsylvania, in the manufacture,
sale, and distribution of automatic sprinklers. The Respondent also operates
a plant in Wheeling, West Virginia, and maintains offices in New York City.
During 1949, the Respondent, in the course and conduct of its business, caused to
be purchased, transferred, and delivered to its Philadelphia plant materials
valued in excess of $50,000, of which approximately 25 percent was transported
to the plant in interstate commerce from States of the United States other than
Pennsylvania. During the same period, the Respondent manufactured at its
Philadelphia plant products valued in excess of $150,000, of which approximately
90 percent was transported in interstate commerce from its plant to points
outside the State of Pennsylvania. It is found that the Respondent is engaged
in commerce within the meaning of the Act.
U. THE ORGANIZATION INVOLVED
District Lodge #1, International Association of Machinists is a labor organiza-
tion admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
The complaint alleged, the Respondent's answer admitted, and the under-
signed finds that all production, maintenance, and shipping employees of the
Respondent employed at its Philadelphia, Pennsylvania, plant, exclusive of all
office clerical employees, technical and engineering employees, guards, watchmen,
professional employees, and all supervisors as defined in Section 2 (11) of the
Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
B. Representation by the Union of a majority in the appropriate unit
On May 4, 1949, pursuant to the terms of a consent election agreement, an elec-
tion was conducted, under the supervision of the Regional Director among the
Respondent's employees in the above-designated appropriate bargaining unit in
order to determine whether they desired to be represented by the Union for
the purposes of collective bargaining. The tally of ballots showed that of the 38
ballots cast, 19 were for the Union, 17 were against the Union, and 2 were chal-
lenged. On May 12, 1949, the Regional Director issued his report on challenges,
sustaining the challenge to the ballot of Charles Parkhill, overruling the chal-
lenge to the ballot of Stanley Worthington, and concluding, "Since Charles Park-
hill's ballot is being dismissed, it will not be necessary to count the ballot of
Stanley Worthington. His ballot cannot, in view of the ruling to exclude Park-
hill, be determinative of the results of the election."
258 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
The revised tally of ballots issued by the Regional Director on May 12, 1949,
showed that of the 37 eligible voters, 19 cast ballots for the Union, 17 voted
against the Union, and another cast a ballot but was, challenged. On May 25,
1949, the Regional Director formally certified the Union as the statutory repre-
sentative of the Respondent's employees in the appropriate unit described above.
Although the Respondent contends that the challenge to the ballot of Parkhill
should have been overruled, it concedes that "in view of the fact that the election
was a consent one, respondent, was, of course, bound by the rejection of Mr.
Parkhill's vote," and is "not at this point -in a position technically to challenge
the certification, nor do we do so."
The undersigned concludes that at all times material since May 25, 1949, the
Union was, and now is, the exclusive representative of all employees 'in the
aforesaid unit for the purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other conditions of employment.2
0. The refusal to bargain
1. Sequence of events
On May 31, 1949, the Respondent and the Union held their first collective bar-
gaining conference, when Joseph Phillips, business representative of the Union,
met with A. C. Rowley, vice president of the Respondent, and Ritz, who also
represented the Respondent. A general discussion as to provisions of a collective
bargaining contract ensued and according. to the credible and undenied testi-
mony of Phillips, "Mr., Rowley took the position then that he was willing to deal
with me as a representative, but would not deal with any of the employees as a
committee, had nothing to do with them as a committee or as stewards or any of
the like, that he wanted none of them in there during negotiations or at any future
time." The conference ended when Phillips promised to submit a proposed
agreement for the Respondent's consideration.
On June 3, 1949, Phillips mailed to the Respondent a proposed collective bar-
gaining contract and suggested an early meeting to discuss it. On June 28,
1949, Phillips met with Rowley and A. M. Lewis, president of the Respondent,'
to discuss the Union's .proposal. The Respondent's representatives suggested
numerous changes in the Union's proposal ; some. suggestions involved changes
in language and others were requests for the elimination of certain provisions.
The Respondent requested that all references to shop stewards or shop com-
mittees be stricken from the proposal and suggested that the words. "an official
representative of the Union" be substituted therefor or that other provisions
be changed so that in the grievance procedure, the employee aggrieved would
process his grievance in the initial steps with the Respondent. Lewis testi-
fied that he desired to eliminate the references to shop committees and shop
stewards because the Respondent's plant was small, employing at most approx-
imately 40 employees, who worked in the same plant with the Respondent's
officials and because of the following experience in its Wheeling plant:
We had just been through a similar experience out in our Wheeling fac-
tory where under the first agreement, we signed with the Union out there,
it provided for a shop committee. There was so much confusion as a result
of that shop committee, that the Union Business Agent himself came to
us at the expiration of the agreement, and said that thing should be out.
' The fact that petitions for decertification of the Union as the statutory representative
of the Respondent ' s employees were subsequently filed does not affect this conclusion, for
the reasons hereinafter indicated.
'-Lewis' office was in New York City. However, all meetings between the Union and
the Respondent were held in the latter's office at its Philadelphia plant.
GLOBE: AUTOMATIC SPRINKLER COMPANY OF PENNSYLVANIA 259'
"It has given me more trouble than anything else in connection with the
agreement, and we can operate better between you and ourselves," and
having that experience, we made up our minds we would not sign any agree-
ment with shop committees or stewards, and that was our objection and
still Is.
In respect to the wage issue, the Respondent, according to Phillips, "took
the position that they were not going to pass on any increases." Phillips also
testified that"`there was a discussion.that there had been a layoff just about
that time, and during the stages of organization, the Company had passed on a
five-cent increase. I took the position that certainly the Company shouldn't
have passed on a five-cent increase if business was as bad as they said it was,
and Mr. Lewis stated they passed the five-cent increase on so as not to help us
organize the plant." Lewis specifically denied the statement attributed to him
by Phillips, although admittedly the Respondent had given a 5-cent an hour
increase to employees a few months previously. From his observation of the
witnesses, the undersigned credits Lewis' denial.
On July 12, Phillips.met with Lewis and Rowley again. The principal matter
discussed was wage rates. In respect to that issue, the Respondent's representa-
tives stated, according to Phillips' credible, and undenied testimony, that "they
didn't feel that they should pass on any increases in pay at that time, that cer-
tainly business conditions didn't warrant it; and increases were not a pattern."
The parties also briefly discussed the layoff of employee Anne Schaab. At the
close of the conference, Phillips requested that the Respondent supply him with
a list of the rates of pay for the various positions in the Philadelphia plant
so that he might compare them with the rates of pay of another automatic
sprinkler company in the vicinity. The Respondent agreed to furnish such a
list and later the same day Lewis mailed a schedule of pay rates to Phillips
with the following letter :
As promised, we are enclosing a schedule of the Classifications of our
Philadelphia Factory and the rates now being paid for such classifications.
In our conversation of today I advised you that we were very definitely
opposed to increasing the wages of our employees at. this time, for it is
our opinion that the economic situation necessitates a reduction in the cost
of the items we manufacture, and by reducing such cost, our employees
will be assured of more work and steadier employment.
As.. to the proposed agreement : We suggested under Article IV "ADJUST-
MENT OF DIFFERENCES" there should be inserted the following :
"It is understood and agreed that this Article IV-'ADJUSTMENT OF DIF-
FE$ENCES' does not include arbitration of wages, for all differences relating
to wages must be adjusted between the Company and the Union."
We further suggested that there be incorporated in the agreement the
following :
The Union recognizes the right of supervisory employees and other em-
ployees not covered by this agreement to carry on research, development
and experimental work in the Production Department.
After you have had an opportunity of giving consideration to the revi-
sion of the Agreement and other details if you will communicate with us,
the writer will arrange another appointment mutually convenient.
During August, several letters were exchanged between the Respondent and
the Union; and the Respondent, in answer to a request from the Union, stated
its position as to the layoff of Schaab. Due to a conflict in vacations of Rowley
and Phillips, the negotiators encountered difficulty in setting a date for another
conference. On September 7, 1949, Phillips met with Rowley and Lewis again.
961974-52-vol. 95-18
260 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
At this meeting, Phillips informed the Respondent's representatives that he
had compared the Respondent 's wage rates with those of a competitor in the
vicinity' and had found "that they were not too far apart, if any" and that
"there would be no issue on wages in the agreement," thereby indicating that
the Union agreed to a continuation of the present wage scale. The layoff of
Schaab was discussed, but the Union was not satisfied with the Respondent's
explanation for her layoff.
Shortly thereafter, apparently in September 1949, the Union filed with the
Board charges that the Respondent had engaged in unfair labor practices in
laying off Schaab. According to the undenied and credible testimony of Lewis,
negotiations between the Respondent and the Union ceased upon the filing of
the Union's charges, "because Mr. Phillips didn't want any negotiations while he.
was pressing this Schaab case."
Ultimately, the Union withdrew its charge, subsequent to an investigation
thereof by the Board, and Phillips sent the Respondent the following letter,
dated January 4, 1950:
Inasmuch as we have withdrawn without prejudice our N. L. R. B.
Charge Case, I would like to resume negotiations. As conditions now
stand, I think we can clean up the unfinished business in one meeting.
Lewis replied to Phillips' request by the following letter, dated January 9,
1950:
In response to yours of January 4, you have suggested a resumption of
negotiations at a rather inopportune time for I am preparing to leave later
in the month for South Africa to be away for several months. My plans in
the meantime are very indefinite and I am unable to suggest any date for a
meeting.
However, I am sending your letter over to Mr. Rowley with the request
that he give it consideration and then I will have a talk with him in the
near future and if it can possibly be arranged, I will suggest an appointment
before I leave ; otherwise resumption of negotiations will have to be delayed
until I return early in April.
We will consider your letter as official notice that you have withdrawn
without prejudice the charges before the National Labor Relations Board.
Phillips answered Lewis' letter on January 10, 1950, requesting that Lewis
"appoint someone with authority to conclude negotiations" and pointing out that
if Lewis did not return until April "that will add probably another two or , three
months to the already long period of time in negotiations." Phillips' letter was
acknowledged by the following letter, dated January 20, 1950, from Lewis'
secretary:
In the absence of Mr. A. M. Lewis, I have for acknowledgment your letter
of January 10.
Mr. Lewis has been out of the office and is not expected before he sails for
South Africa on Saturday, Jan. 21, to be away until the latter part of
March or the first part of April. Your letter will be brought to his attention
on his return and I am sure at that time he will communicate with you
further.
On January 26, 1950, Phillips sent Rowley the following letter :
I received a letter from Miss Marie C. Mahoney, Secretary to Mr. A. M.
Lewis, which indicates that the Company will not negotiate any further on
the Contract between the parties until sometime after the first of April 1950.
We consider this delay too much and feel that inasmuch as we have
GLOBE. AUTOMATIC SPRINKLER COMPANY OF PENNSYLVANIA 261
-reached a tentative agreement, we will embody in a Contract, the Agreement
reached and I hope to have it in your office within the next four or five days.
I will then appreciate your checking it and having someone with authority
sign It and return the same to me,
On February 7, 1950, Phillips mailed to Rowley a copy of the contract re-
ferred to in Phillips' letter of January 26, 1950. In regard to this contract,
Phillips testified that he had made notes in previous conferences with the Re-
spondent of its position in regard to various provisions of the Union' s first pro-
posal and that he incorporated the Respondent's suggestions into the proposal
.submitted on February 7, 1950, and that this was the first time that the Union
had indicated its assention to the Respondent's suggested changes in the first
proposal.' Among other concessions, this proposal deleted references to shop
committees and stewards.
On February 14, 1950, Rowley sent Phillips the following letter:
I am acknowledging receipt of your letter dated February 7th, with pro-
posed Working Agreement for the Employees in our Philadelphia Factory.
There are some clauses in the Agreement not entirely satisfactory to me
and while. I am perfectly willing to negotiate these questions, any decision
that I or others in the Philadelphia Office may reach in the matter will have
to be submitted to our President, Mr. Lewis, for final action.
You were advised that Mr. Lewis had sailed for South Africa and would
not be available until about April 1st. We have not heard from him since
-he" sailed from New York, but when we learn where he can be reached in
South Africa, we will communicate with him by Air Mail, and submit the
Agreement with our recommendation for his consideration.
I will, of course, be available for any further discussion in the matter that
you may feel is necessary.
Phillips did not acklowledge Rowley's letter or take any steps to discuss the
Union's second proposal with him. About April 1, 1950, Lewis returned from
his vacation trip to Africa. On April 17, 1950, Phillips sent Lewis the following
letter :
Inasmuch as our information was that you would return from South
Africa around April 1st, we have waited until now for some word from you
in order that we can get together to sign the Contracts submitted sometime
ago to your office.
I would appreciate your contacting me as soon as possible in order that
we can complete the business we have at hand.
Lewis replied by the following letter, dated April 19,1950:
In response to yours of April 17, since my return from South Africa there
has been considerable correspondence between Mr. Rowley and me about
the proposed factory agreement and, further, we have discussed the subject
on my one visit to Philadelphia since returning.
Very recently Mr. Rowley submitted to me a revised form of proposed
agreement which, frankly, I have not had an opportunity of reviewing in
complete detail, but to save time I am enclosing a copy for your review.
I shall be in Philadelphia for the day only on Tuesday, April 25. If you
are desirous of discussing this subject further with me then, advise me at
this address. If you do come into the Philadelphia cffi2e for this discussion,
arrange to do so about 11 a. in., but let me know whether to expect you.
4 It is clear, however, that this proposal of the Union did not embrace all the changes
sugge:ed by the Respondent in the Union's first proposal, since it did not incorporate the
suggestions made by Lewis in his letter of July 12, 1949, to Phillips.
262 . DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
On April 25, 1950, Phillips met with Rowley and Lewis and, according to the
credible testimony of Phillips, the following occurred :
. . . the Union took the position that they would accept the Company's
agreement as submitted, and Mr. Lewis said at that time that this agree-
ment had been submitted by Mr. Rowley and that he didn't have time to
check it and that he was going away, and due to the rail strike, he was
going to fly, but that he would take a copy of this with him and check it.
We took the position that nevertheless we would accept-that agreement, .and
would confirm it by letter. Mr. Lewis then left the room and Mr. Rowley
mumbled something about him not being sure that the provisions of this
agreement, that there has to be some checking done.'
The following day, Phillips wrote Lewis as follows :
This will confirm my position of April 25, 1950 at the conference heldi
with Mr. Rowley and yourself that the Company's proposed Agreement, as
submitted to me by Mr. Rowley, is acceptable to the Union.
On April 28, 1950, Lewis sent Phillips the following letter :
When I sent you the draft of the revised agreement prepared by Mr-
Rowley, -I advised you in my letter :
``Very recently Mr. Rowley submitted to me a revised form of pro-
posed agreement which, frankly, I have not had an opportunity of
reviewing in complete detail, but to save time I am enclosing copy for
your review.
Later you met with Mr. Rowley and with me at our Philadelphia office
on Tuesday, April 25, and at that time I advised you that I had not had an
opportunity of reviewing the agreement but would do so on my way to
Wheeling, W. Va., where Mr. Rowley and I were going Tuesday afternoon.
Unfortunately, our plans were changed, we had to go by air instead of rail
because of the threatened railroad strike, and I had no opportunity of
reviewing the agreement on the plane, nor have I been able to do so since
returning to the office, but I will take it home with me over the week end
and then comment further in a letter to you next week.
We understand from your conversation of April 25 and your letter of the
26th that the agreement as prepared by Mr. Rowley is satisfactory to you,
but I must first satisfy myself that it is satisfactory to us and will communi-
cate with you later.
On May 1, 1950, a petition for decertification of representatives, in Case No.
4-RD-48, covering the Respondent's employees in the appropriate unit, was
filed with the Board, and on the same day Harry A. Rutenberg, an attorney,
sent the following letter to the Respondent :
I represent a majority of your employees who have requested me to file a
Petition for Decertification of District Lodge No. - of the International
Association of Machinists, as the bargaining representatives for these
employees. You are hereby requested not to enter into any agreement with
this Union until such time as the National Labor Relations Board has
passed upon the Petition for Decertification as bargaining representative,
which has been filed with them.
'Lewis denied that Phillips indicated at this meeting his acceptance of Rowley's draft
of the Respondent's proposed agreement. Lewis' denial is not credited ; it is refuted by
a letter to Lewis from Phillips and by Lewis' own admission in a subsequent letter to
Phillips. The letters appear infra.
GLOBE ; AUTOMATIC SPRINKLER COMPANY OF PENNSYLVANIA 263
By letter dated May 4, 1950, Lewis advised Phillips that "further negotiations
with you concerning the proposed Philadelphia Factory agreement must now be
suspended pending the outcome of a petition which we understand has been
filed with the National Labor Relations Board for decertification of" the Union.
On May 5, 1950, an amended petition was filed in Case No. 4-RC-428 and was
dismissed by the Regional Director on the ground that it was untimely filed
since the Union's certification year had not expired. The petitioner appealed to
the.Board, which sustained the Regional Di'rector's ruling.
On October 11, 1950, another petition for decertification of the Union as the
collective bargaining representative of the Respondent's employees was filed
with the Regional Director in Case No. 4-RD-58. The Regional Director dis-
missed the petition on October 17, 1950, because of the pendency of the instant
proceeding. At the time of the hearing an appeal from the Regional Director's
.ruling was pending before the Board. All employees in the appropriate unit
signed petitions in support of both decertification petitions.
2. Conclusions
The 'General Counsel contends initially that the Respondent's request that
,references to shop committees and stewards be deleted from the Union's pro-
posal and that the Union's representative for the purpose of dealing with the
Respondent under the contract be "its duly accredited Official Representatives,
which representatives shall not be employees of the Company," was per se
'violative-of Section 8 (a) (5) of-the Act. A recent decision of the-,Board, in
the Shell Oil case,' elaborates upon, and limits, the line of cases relied upon
q)y the General Counsel.' Therein the Board stated as follows :
Under the Act, a union , as the duly designated representative' of the
employees, has a right to select the class of persons, whether they be em-
ployees or nonemployees, to negotiate with the employer as to grievances.
An employer may not, without violating the Act, insist, as a condition of
signing a collective bargaining agreement, that the union surrender its right
to be represented by a particular class in bargaining as to grievances.
The record in this case, however, does not show that the Respondents
had ever taken such a position. On the contrary, so far as appears in this
record, the Respondent and the Union agreed upon the grievance clause in
question, which limited negotiations as to grievances to a committee of five
employees from each plant, through good-faith negotiation and collective
bargaining.
While a union may not be. compelled to bargain as-to giving up its right to
negotiate grievances through any class it desires, we see no reason why a
union may not waive that right through genuine collective bargaining, if it
so chooses, just as a union may under certain circumstances waive its right
to strike or its right not to have an employer deal with employees indi-
vidually. It is not an uncommon practice for unions to bargain about the
composition of the committee or class to negotiate grievances, as witness
the numerous contracts containing such clauses.
We believe, on the basis of the record before us, that such a situation
prevailed here. The employees had exercised their free choice in selecting
the Local as their duly constituted statutory representative. The Local,
empowered by the employees to execute a collective bargaining agreement
° Shell Oil Company et at., 93 NLRB 161.
z Principally, The Oliver Corporation, 74 NLRB 483; The Kentucky Utilities Company,
76 NLRB 845; Hopper Manufacturing Company , 74 NLRB 853; Deena Artware, Inc.,
86 NLRB 732.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on their behalf, negotiated a contract which contained the grievance clause
in question, setting forth the composition of the Union's negotiating com-
mittee on grievances. The Local now seeks to nullify this agreement by
asking us to hold that it may at will ignore its contractual arrangement
and seek to negotiate grievances through committees or classes other than
that upon which it had agreed.
We do not believe that it would effectuate the policies of the Act to pre-
vent disruptions to interstate commerce by stabilizing labor relations, to
permit such a disregard of a contractual obligation voluntarily assumed.
Such a holding does not derogate from the principles of collective bargain-
ing. For, in the first instance, the union is not required to bargain at all
with respect to waiving or restricting its right to be represented by any
specific class, regardless of an employer's insistence. But here the union,
either voluntarily or because it yielded to the normal persuasion attendant
upon good-faith collective. bargaining , as distinguished from the case where
yielding is made a condition to the execution of an agreement, willingly
bargained with respect to the subject matter in question, and agreed to the
restriction pursuant to the ordinary give and take of good-faith bargaining.
For us to hold that an employer under these circumstances violates the Act
by insisting that the union honor its contractual obligation would make a
mockery of the collective bargaining in which the parties. in good faith
engaged.'
.Although the facts of the instant proceeding are distinguishable from those
of the Shell Oil case, inasmuch as it is clear that the record herein establishes
on • other. 'grounds that the Respondent refused to bargain with the Union, it
appears that the above-enunciated policy of the Board is dispositive of this
issue of the case. Here, the Respondent requested that the Union's'representa-
tives for the purpose of dealing with the Respondent under the contract be
limited to the Union's official representatives who were not employees of the
Respondent. So far as appears herein, the Union voluntarily acceded to the
Respondent's request in this regard without voicing any opposition and incor=
porated the Respondent's requests in the Union's second proposed contract.
Although President Lewis admitted, "We made up our minds we would not
sign any agreement with shop committees or stewards," it does not appear that
the negotiations as to this portion of the contract were based upon that condi-
tion ^or-that such condition was+specifically voiced in the negotiations;: Here,
the Respondent requested that the language of the Union's proposal be changed
so as to eliminate shop committees and stewards and confine the Union's repre-
sentatives .to its official officers or representatives who were not employees of
the Respondent. The Union agreed to the Respondent's request and, in the
undersigned 's opinion, thereby waived "its right to negotiate grievances through
any class it desires." The undersigned concludes that the Respondent' s request
in regard to the contract's, definition of the Union's representatives and the
Union's agreement thereto does not establish that thereby the Respondent re-
fused to bargain collectively with the Union in violation of Section 8 (a) (5)
of the Act.
In the undersigned 's opinion , the record sustains the General Counsel's sec-
ond contention that the Respondent was not bargaining in good faith with the
Union. Although the background evidence of the negotiations between the
s Marginal notes have not been included in the quotation from the Board' s_Decision
and Order.
GLOBE. AUTOMATIC SPRINKLER COMPANY OF PENNSYLVANIA 265
parties from May to September 1949,° cast little reflection upon the Respondent's
attitude in bargaining with the Union, aside from Lewis' admitted belief that the
Union never represented a majority of Respondent's employees, and although
the cessation of the negotiations between September 1949 and January 1950 was
at the Union's request, pending the -outcome of its unfair labor practice charges
in respect to the layoff of Schaab, the undersigned is persuaded that following.
the'Union's request that negotiations be resumed in January 1950, the Respond-
ent failed to bargain in good faith with the Union. As noted above, Lewis
answered the Union's request for a resumption of negotiations on January 9,.
.1950, and stated that he was leaving for South Africa for several months and.
,that he would attempt to arrange an appointment before he left, "otherwise
resumption of negotiations will have to be delayed until I return early in April."'
The following day, the Union requested that Lewis "appoint someone with.
authority to conclude negotiations." Lewis did not, himself, answer the request
of the Union and testified that he did not accede to the Union's request because
,"I won't give that authority to anybody." The Union's request was ultimately
acknowledged by Lewis' secretary on January 20, stating "Your letter will be
;brought to his, attention on his return and I am sure at that time he will com-
municate with you further." On January 26, 1950, the Union wrote Vice-Presi-
dent Rowley and protested the inference in the letter from Lewis' secretary
"that the Company will not negotiate any further on the Contract between the
,parties until sometime after the first of April 1950." In this letter the. Union
.stated that in a few days it would submit a second proposal and requested that
Rowley give it his consideration and have "someone with authority sign it."
Apparently, Rowley did not acknowledge this communication from the Union.
On February 7, 1950, the Union submitted, its second proposal to Rowley. On.
February 14, 1950, Rowley acknowledged its receipt and stated that although
fioihe'clauses were not' satisfactory to him and "while I am perfectly willing to
-negotiate, these questions, any decision that I or others in the Philadelphia Office
may reach in the matter will have to be submitted to our President, Mr. Lewis, for
final action." He-further stated that he would communicate with Lewis by air
mail when "we learn where he can be reached in South Africa," and that Rowley
would be available for further discussion with the Union about the matter. The
undersigned concludes that Lewis' failure to delegate authority to someone to
represent the Respondent for the purpose of concluding negotiations with the
Union during his absence in Africa constituted an act of bad faith30 The fact
that. Rowley ultimately offered to meet with the Union to discuss its second
proposal does not negate this conclusion, in view of Lewis' earlier statements in.
January and his failure to answer the Union's request that he designate some-
one with authority to conclude negotaiations, as well as Rowley's apparently
limited 'authority, demonstrated by Lewis' reaction'to Rowley's subsequent pro-
posal, and the obvious impracticability of the Union's negotiating with a repre-
sentative of the Respondent whose authority was limited and whose commitments
would be subject to the approval of another representative on a tour of South.
Africa. The fact that negotiations were in abeyance at the Union's request,
° The charge in the instant proceeding was filed on May 23, 1950, and a copy thereof'
was served on the Respondent on May 24, 1950. Section 10 (b) of the Act prohibits.
the undersigned from finding unlawful any conduct of the Respondent which occurred'
6 months prior to the filing of the charge with the Board and the service of the charge
upon the Respondent . Such 6-month period commences about November 23, 1949.
Accordingly the events occurring prior thereto are, set forth for the purpose of background
only.
- ,.
10 Manville Jenckes Corporation, 30 NLRB 382, 410; Lloyd A. Fry Roofing Company,
85 NLRB 1222, 1246; J. 11. Rutter-Rex Manufacturing Company, Inc.. 86 NLRB 470,
474, 505-8.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from September 1949 to January 1950, can in no way excuse the Respondent's
delay in resuming negotiations with the Union in 1950 or any further pro-
crastination on the part of the Respondent.
Additional indicia of bad faith on the part of the Respondent are shown in its
1950 negotiations with the Union. The Respondent took no steps to consult the
Union about the latter's second proposal after Lewis' ultimate return from his
tour around April 1, and the.parties finally met, pursuant to the Union's request,
on April 25. In preparation therefor, Lewis had submitted to the Union a pro-
posal which Rowley had drafted and which Lewis stated he had not had time
to examine . The conference on April 25 was inclusive, due to the fact that Lewis
had not determined whether Rowley's proposal was acceptable and that a change
in Lewis' plans necessitated his leaving earlier than anticipated on a business
trip. However, when at this conference the Union informed the Respondent that
it would accept Rowley's proposal as written, Lewis asserted that he had not
yet examined the proposal and would have to give it further study. Lewis re-
iterated the same position in his letter of April 28, 1950. Finally, when the
Respondent learned of the filing of the petition for decertification of the Union
as the statutory representative of its employees on May 1, 1950, the Respondent
broke off all negotiations with the Union on May 4, 1950, "pending the outcome
of the petition."
Inasmuch as the petition for decertification was filed before the expiration of
a year from the date of the Union's initial certification as the statutory repre-
sentative of the Respondent's employees, it is clear that the decertification peti-
tion was untimely filed and that the Respondent 's cessation of negotiations on
May 4, 1950, because of the filing of the decertification petition, constituted a re-
fusal to bargain with the Union in violation of Section 8 (a) (5) of the Act u In
"In Southern Block and Pipe Corporation , 90 NLRB 590, the Board stated, ."An
employer is obligated to bargain with a certified union during the certification year,
regardless of the imminence or actual pendency of a decertification petition ." See also
John Deere Killefer Company , 86 NLRB 1073 ; Belden Brick Company, 83 NLRB 465';
Lift Trucks, Inc., 75 NLRB 998. The record discloses no special circumstances which
obviate the application of the Board 's customary rule stated above, that "an employer
is obligated to bargain with a certified union during the certification year. " The fact
that only ' 21 days of the certification year remained when the Respondent broke off
negotiations with the Union does not distinguish the instant proceeding from the cited
line of cases , for it is clear that a comparable , if not shorter , period of time remained
to run in the certification year in the Southern Block case . The fact that all of the
Respondent ' s employees supported the decertification petition does not abrogate the
. application of the aforementioned rule. See The Mengel Company, 80 NLRB 705 , 718, 719.
The Respondent 's contention , asserted in its brief, that "at the time negotiations were
broken off , it was apparent to Mr. Lewis that it was futile to continue them and that
continuation could have resulted in no satisfactory agreement within the foreseeable
-future" is not supported by the record . Indeed, it appears that the contrary was true;
the Union had indicated its agreement to the terms of Rowley 's proposal and one may
infer that it would have capitulated to any reasonable proposal of the Respondent in
relation thereto, thereby meeting any objection which Lewis might have had to the
terms of that proposal . The contention of the Respondent that the Union was bargaining
in bad faith because it "was offering to enter into an agreement on behalf of the members
of the unit which did not give them any increase of wages or any increased fringe benefits
-of any type , without submitting it to them for ratification ," is without merit. Phillips,
according to his credible testimony , was authorized by the Union to negotiate and execute
on its behalf a collective bargaining contract , with the most advantageous terms he could
obtain, with the Respondent. His abandonment of a request for a wage increase was
based upon the assertion of the Respondent that, it could not afford to grant an increase
.and upon Phillips ' ascertainment that the wage rates of the Respondent compared favorably
with those of a competitor . The elimination from the Union 's first proposal of a provision
that the contract should be ratified by the employees was made because of Lewis' initial
objection to the clause . So far as the record shows, there was never a demand by the
Respondent that it be reinstated ; indeed, no mention of ratification by the employees
:subject to the contract was included in Rowley ' s proposal . The Respondent's duty was
GLOBE AUTOMATIC SPRINKLER COMPANY OF PENNSYLVANIA 267
the undersigned's opinion, this action by the Respondent was also a further in-
dication of bad faith on its part, since the inference resulting from its action is
that it seized upon the filing of a decertification petition as an excuse to suspend
negotiations at a time when the parties were near to agreement on terms of a
contract, the Union having indicated its agreement to the provisions of Rowley's
proposal and, inferentially, to any reasonable modification thereof.
Moreover, Lewis' testimony itself casts doubt on his bona fides during his
negotiations with the Union. Thus, he testified that he never told the Union all
of his objections to its proposals. An example of such "reserved" objection was
that which he testified he had in regard to the provision of the Union's proposals
as to their term. Both obviously contemplated that they should be effective
for the duration of a year, but contained a provision that the agreement might
be terminated, altered, or amended upon 60 days' written notice. Since Rowley's
proposal contained the same provisions as to term as those of the Union, it is
clear and it is found that Lewis had never voiced his objection thereto prior
to the hearing. In addition, his testimony indicated that his ultimate position
as to certain provisions of the Union's proposal was different from that there-
tofor expressed. For example, Lewis' letter of July 12, 1949, to the Union, set
forth previously, requested that a change be made in the contracts provisions
with respect to arbitration. Lewis testified that later, he decided that all of the
arbitration provisions should be eliminated from the contract, as they were in
Rowley's proposal.12
Upon the foregoing and the entire record in the case, the undersigned con-
cludes and finds that by failing to designate a representative to conclude nego-
tiations with the Union, pursuant to its request of January 9, 1950, and delaying
negotiations until Lewis' return in April 1950, by breaking off negotiations
with the Union on May 4, 1950, pending the outcome of a decertification petition,
and by failing to negotiate in good faith with the Union, the Respondent has
refused to bargain collectively with the Union since about January 9, 1950, and
thereafter, and thereby has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act, in violation of
Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above , occurring in
connection with the operations of the Respondent described in Section I, above,
have a close , intimate, and substantial relation to trade, traffic , and commerce
among the several States , and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that- the Respondent engaged in unfair labor practices violative
of Section 8 (a) (1) and (5) of the Act, the undersigned will recommend that
it cease and desist therefrom and take certain affirmative action necessary to
effectuate the policies of the Act.
Having found that the Respondent refused to bargain collectively with the
Union as the exclusive representative of its employees in the appropriate unit,,
to bargain in good faith with the Union's representative. Whether the contract would
be satisfactory to the membership or whether the Respondent entertained a belief-conr-
pletely conjectural-that the Union's membership would not approve the terms of a
contract, in large part dictated by the Respondent, is immaterial so far as the Respondent's.
duty to bargain with the Union is concerned and does not establish that the Union was.
bargaining in bad faith.
22J. W. Woodruff, Sr., et at., 90 NLRB 808, and cases cited therein.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the undersigned will recommend that the Respondent, upon request, bargain
collectively with the Union as such representative, and if any understanding is
reached, embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLtiS1oNS o F 'LAW 18
1. District Lodge #1, International Association of Machinists is a labor organ-
ization within the meaning of Section 2 (5) of the Act.
2. All production, maintenance, and shipping employees of the Respondent
employed at its Philadelphia, Pennsylvania, plant, exclusive of all office clerical
employees, technical and engineering employees, guards, watchmen, professional
employees, and all supervisors as defined in Section 2 (11) of the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. On May 25, 1949, District Lodge #1, International Association of Machinists
was, at all times since has been, and now is, the representative of a majority of
the Respondent's employees in the appropriate unit described above for purposes
,of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing since about January 9, 1950, and thereafter, to bargain collec-
tively with District Lodge #1, International Association of Machinists as the
exclusive representative of all its employees in the appropriate unit, the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) and (1) of the Act.
. 5. 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.]
18 The Respondent submitted separately numbered proposed findings of fact and conclu-
•slons of law . The undersigned accepts the proposed findings of fact numbered 1, 3, 6, 7,
13, 18, 31, 36, and 45. The undersigned rejects the proposed findings of fact numbered
:5, 8, 12, 14, 19, 23, 24, 26, 27, 28, 30, 37, 38, 39, 40, 42, 43, 44, and 46. The undersigned
also rejects the proposed findings of fact numbered 2, 4, 9, 10, 11, 15, 16, 17, 20, 21, 22, 25,
-29, 32, 33, 34, 35, and 41, because, as worded, he cannot accept them entirely. The
;prop.osed conclusions of law numbered 1, 2, 3, and 4, are rejected.
STATE CHEMICAL COMPANY and INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL, LOCAL 577, PETITIONER. Case No. 16-RC-640. July 18, 1951
Supplemental Decision and Direction
Pursuant to a Decision and Direction of Election, issued in the above
proceeding on February 8, 1951,1 an election by secret ballot was held
on March 3, 1951, under the direction and supervision of the Regional
2•Not reported in printed volumes of Board Decisions.
95 NLRB No. 37.