Poole Foundry and Machine Co.

National Labor Relations Board - Board Decisions

Jul 9, 1951

95 N.L.R.B. 34 (N.L.R.B. 1951)

34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rooms, and several plant food concessions. Such facilities are practi-
cally the only ones available to employees within the plant area. In
accord with our practice, we find that the interests of commissary or
restaurant employees are sufficiently related to those of the production
and maintenance employees to warrant their inclusion in the unit."'
Accordingly we find that the following employees at the Employer's
plants at Dayton and Washington Court House, Ohio, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act :
All production and maintenance employees,19 including the time
writers, assistant clerks, head clerks, and factory clerks '2o high school
co-operative students, model makers, instrument repairmen in the in-
strument control laboratory, analyzers, inspection investigators, in-
structors, job leaders, subwatchmen, chauffeurs, and commissary em-
ployees, but excluding all office clerical employees, university co-
operative students, technical employees, professional employees,21
temporary employees at Old River and Sugar Camp,22 all employees
presently represented by the American Federation of Labor printing
craft unions,23 guards, job foremen, and all other supervisors as de-
fined in the Act 24
[Text of Direction of Election omitted from publication in this
volume.]
18 Kohler Company , supra, and cases cited therein.
19 The parties agree that the maintenance employees in the plant engineering department,
the outside department employees , garage department employees , and group leaders , should
be included within this category . It is clear from the record , and we find, that group
leaders are not supervisors within the meaning of the Act.
20 The parties agree that the 6 clerks in the receiving department and the 11 clerks in
the traffic department should be included in this category.
21 The parties agree that the registered nurses , the part -time dentist , and the two part-
time physicians should be excluded in this category.
22 In accordance with the agreement of the parties.
23 Dayton Typographical Union No. 57 ; Dayton Electro-typers Union (Local No. 114)
I. S. & U.; Dayton Photo-Engravers Union ( Local No . 60) ; Dayton Stereotypers Union
No. 15 ; and Dayton Printing Pressmen and Assistants ' Union No. 24.
141f the Petitioner does not desire to participate in an election at this time, we shall
permit it to withdraw its petition without prejudice upon notice to the Regional Director,
within 10 days after issuance of the Decision and Direction of Election herein. Flora
Cabinet Company , Inc., 94 NLRB 12, and case cited therein.
POOLE FOUNDRY AND MACHINE COMPANY and LODGE 211, INTERNA-
TIONAL ASSOCIATION OF MACHINIS TS . Case No. 5-CA -352. July
9, 1951
Decision and Order
On March 9, 1951, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
95 NLRB No. 3.
POOLE FOUNDRY AND MACHINE COMPANY e3c5-
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.
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].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The-
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire-
record in the case,l and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the additions and modi-
fications set forth below.
The Union was certified by the Board in 1946 as the collective
bargaining agent of the production and maintenance employees of
the Respondent, and thereafter executed 2 collective bargaining agree-
ments with the Respondent on behalf of these employees. On De-
cember 27, 1.949, the Union and the Respondent signed a settlement
agreement disposing of charges which had been filed by the Union
alleging, among other things, that the Respondent had refused to,
bargain with the Union in violation of the..Act. This settlement
agreement provided that the Respondent would bargain with the
Union and would post notices at its plant for 60 days informing the
employees of its intention to do so. The Respondent posted the re-
quired notices and met in 2 bargaining conferences With the Union
in February 1950. No agreement resulted from these meetings. On
March 9, 1950, certain employees of the Respondent filed a petition
to decertify the Union.2 On March 15 the Respondent was apprised
by the Regional Office of the Board of the pendency of this petition.
At its next bargaining conference with the Union, the Respondent
assumed the position that in view of the pendency of the decertifica-
tion petition, which allegedly was supported by 64 of the Respondent's
66 employees, it would not bargain with the Union unless the Union
furnished proof that it actually represented a majority of the Re-
spondent's employees. On April 19,1950, the Regional Director noti-
fied the parties that he was dismissing the decertification petition.
The Petitioners appealed this dismissal to the Board which, on May
12, 1950, denied the appeal on the ground that the "Employer and
the IAM are entitled to a reasonable time within which to effectuate
the provisions of the settlement agreement executed in Case No.
5-CA-194, free from rival claims and petitions, which reasonable
' The request by the Respondent for oral argument is denied , because the record , excep-
tions, and brief, in our opinion , adequately present the issues and the position of the parties.
2 5-RD-42.
961974-52-vol. 95-4 1
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time has not yet elapsed." Despite this final dismissal of the de-
certification petition, the Respondent has admittedly continued to
refuse to bargain with the Union on the ground that the Union had
not proven its majority status..
The Trial Examiner found, and we agree, that this refusal was in
violation of Section 8 (a) (5) and (1) of the Act.3 As the Union
had been certified in 1946 and as there is nothing to rebut the pre-
sumption established by the certificate that the Union's majority con-
tinued even after the certification year, we find that at the time of
execution of the settlement agreement the Union continued to be
majority representative of the Respondent's employees.4 By execut-
ing the settlement agreement, the Respondent acknowledged its obli-
gation to bargain with the Union. The issue here is how long after
the execution of the settlement agreement that obligation continued.
It is well settled that after the Board finds that an employer has
failed in his statutory duty to bargain with a union, and orders the
employer to bargain, such an order must be carried out for a reason-
able time thereafter without regard to whether or not there are fluc-
tuations in -the majority status of the union during that period.5
Such a rule has been considered necessary to give the older to bargain
its fullest effect, i. e., to give the parties to the controversy a reasonable
time in which to conclude a contract. Similarly, a settlement agree-
ment containing a bargaining provision, if it is to achieve its purpose,
must be treated as giving the parties thereto a reasonable time in
which to conclude a contract. We therefore hold that after providing
in the settlement agreement that it would bargain with the Union,
the Respondent was under an obligation to honor that agreement for
a reasonable time after its execution without questioning the repre-
sentative status of the Union. We further find that such a reasonable
time had not yet elapsed when, on April 10, 1950,6 the Respondent
refused to bargain with the Union on the ground that it did not
represent the majority of its employees.
•.a The Trial Examiner notes in his Intermediate Report that the Respondent did not
appeal the dismissal of the decertification petition by the Regional Director . As neither
the Act nor the Board 's Rules and Regulations , however, permit such action by an employer,
no inference adverse to the Respondent can be drawn from its failure to appeal therefrom.
4 United States Gypsum , 90 NLRB 964 . The Trial Examiner states in his Intermediate
Report that the Respondent conceded that the Union represented a.^majority of the
Respondent ' s employees at the time the settlement agreement was executed . This state-
ment is based upon an inference the Trial Examiner draws from a colloquy between
hiipself and counsel for the Respondent . - While we would not make the same inference
from this colloquy , we find, for the reasons set forth above, that at the time of the
execution of the settlement agreement the Union continued to be the representative of
the Respondent 's employees.
e N. L. R. B. v. Tower Hosiery Mills, 180 F . 2d 701, cert . den. 340 U. S. 811, and
cases cited therein. .
6 The Intermediate Report finds that the first refusal to bargain occurred on April 11,
1950 . However , the record establishes that the first refusal took place in the conference
between the Respondent and the Union on April 10, 1950, which refusal the Respondent
confirmed by a letter to the Union on April 11.
POOLE FOUNDRY AND MACHINE COMPANY 37•
We do not agree with the Trial Examiner that such a refusal to
bargain was justified until April 19, 1950, when the Respondent was
informed by the Regional Director that the decertification petition
had been dismissed. The test of the legality of the refusal to bargain
in a case of this nature is whether or not a reasonable time has elapsed
between the execution of the settlement agreement and the refusal to
bargain, not whether or not the employer believed in good faith that
a question concerning representation might exist.7 Accordingly, we
find that on April 10, 1950, the Respondent refused, and continues to
refuse, .to bargain with the Union in violation of Section 8 (a) (5)
and (1) of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the Act as amended, the National Labor Relations Board hereby
orders that Poole Foundry and Machine Company, Baltimore, Mary-
land, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Lodge 211, International
Association of Machinists, as the exclusive representative of all its
employees in the appropriate unit with respect to rates of pay, wages,
hours of employment, or other conditions of employment.
(b) In any manner interfering with the efforts of Lodge 211, Inter-
national Association of Machinists, to bargain collectively with the
Respondent.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Lodge 211, Interna-
tional Association of Machinists, as the exclusive representative of all
the employees in the appropriate unit, and embody any understanding
reached in a signed agreement.
(b) Post at its Baltimore, Maryland, plant, copies of the notice
attached to the Intermediate Report marked "Appendix A." 8 Copies
of such notice, to be furnished by the Regional Director for the Fifth
Region, shall, after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon re-
ceipt thereof, in conspicuous places, including all places where notices
to employees are customarily, posted. Reasonable steps shall be taken
' The Board has held that where, as here , a petition is untimely filed, it raises no real
question concerning representation . Gulf Shipside Storage Corporation, 91 NLRB 181.
g This notice , however, shall be and it hereby is amended by striking from the first
paragraph thereof the words, "Recommendations of a Trial Examiner " and substituting
in lieu thereof the words, "A Decision and Order ." In the event that 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."
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Fifth Region, in writing,
within ten (10) days from-receipt of this Decision and Order, what
steps the Respondent has taken to comply herewith.
.Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by Lodge 211, International Association of Machin-
ists, herein called the Union, the General Counsel of the National Labor Rela-
tions Board, herein respectively called General Counsel and the Board, by the-
Regional Director for the Fifth Region (Baltimore, i\Iaryland), issued a complaint
dated January 15, 1951, against Poole Foundry and Machine Company, Balti-
more, Maryland, 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 charge were duly served upon the Respondent ; copies
of the complaint, and notice of hearing were duly served upon the Respondent
and the Union.
With respect to the unfair labor practices the complaint alleges, in substance;
that the Respondent: (1) Since April 11, 1950, has continuously refused toy
bargain with the Union as the exclusive representative of all its employees in am
appropriate unit; and (2) by such refusal has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed by the Act.
Thereafter the Respondent duly filed its answer, in which it denied having
engaged in the unfair labor practices alleged, and in which it set forth certain,
affirmative allegations discussed more fully below.
Pursuant to notice, a hearing was held in Baltimore, Maryland, on February 6
and 7, 1951, before the undersigned duly designated Trial Examiner. The General
Counsel and the Respondent were represented by counsel, the Union by officials.
Full opportunity to be heard, to examine and cross-examine witnesses, and to-
introduce evidence bearing on the issues was afforded all parties.
Counsel waived opportunity to argue orally before the Trial Examiner . Briefs
have been received from General Counsel and the Respondent.
Upon the entire record in the case, and from his observation of the witnesses;
the Trial Examiner makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Poole Foundry and Machine Company is a Maryland corporation which owns
and operates a plant in Baltimore, Maryland, where it is engaged in the business
of machining and manufacturing couplings. During 1950 the Respondent pur-
chased for use at its plant raw materials valued at more than $250,000, of which
about 85 percent was shipped to it from points outside the State of Maryland.
During the same period the Respondent produced finished products valued at
more than $665,000, of which about 99 percent was sold and shipped to point's
outside Maryland.
POOLE FOUNDRY -AND MACHINE COMPANY - 39
IT. THE LABOR ORGANIZATION INVOLVED
Lodge 211, International Association of Machinists, is a labor organization
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
It is General Counsel's contention, opposed by the Respondent, that the Re-
spondent was legally obligated to bargain with the Union for a period of at
least a year following execution of a settlement agreement between the parties
and approved by the regional Director in December 1949, and that by declining
to enter into a contract in April 1950, and thereafter, until the Union had proven
its majority, the Respondent refused to bargain in good faith.
B. The facts
Following a Board election in 1946, the Union was certified as the exclusive
bargaining representative for all employees of the Respondent in an appropriate
unit. In 1947 and again in 1948 the parties executed 1-year agreements. Dur-
ing negotiations in 1949, the Union filed unfair labor practice charges against
the Respondent.' In a letter to the Regional Director the Respondent, denied
engaging in unfair labor practices. On December 27, 1949, the Union and the
Respondent signed a settlement agreement disposing of the charges, and the
agreement was approved by the Regional Director.
In substance, the settlement agreement provided that the Respondent should
post at its plant notices, for a period of 60 days, informing its employees that it
would bargain collectively with the Union as the exclusive representative of all
its employees in an appropriate unit, duly described. On March 6, 1950, the
Respondent was notified, in writing, by a Board agent as follows :
The completion of this posting period, and as there has been no reported
violation of the other provisions of the Settlement Agreement, it appears
that full compliance has been effected. Accordingly our files in the case are
being closed.
Following execution of the settlement agreement, the Union first sought nego-
tiations during the latter part of January 1950. A meeting was held on February
2. Various proposals were discussed and agreement was reached on a number
of provisions. Another meeting was held on February 28, and again apparently
amicable negotiations occurred. On March 21 the union representative, William
J. Sheldon, forwarded to the Respondent's representative, Attorney John H.
Hessey, certain counterproposals in accordance with an understanding reached
at the previous meeting, and on March 27 Sheldon wrote to Hessey, seeking another
meeting to discuss these counterproposals. The next day Hessey replied to this
letter, stating that he had been in communication with a. Board representative
.concerning a "petition filed by some of the employees," that he was; to meet with
this Board representative on April 3, and that after this conference he would
be in a position to confer" with Sheldon.
Hessey and Sheldon met again on April 10, at which time Sheldon was told,
according to Hessey's credible testimony, that:
... from all indications the Union did not represent the men, that I had
received notice of the petition for decertification, that I had been advised
I Case No. 5-CA-194.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that 64 out of the 66 employees had signed it, and that we felt if that were the
situation , we ought to have proof of the fact that he (Sheldon) would
represent them.
Sheldon declined to consent to an election . 'No contractual terms were dis
cussed at this meeting . Hessey, as a witness , thus explained why no further
negotiations took place :
... because I said that any meetings we had would have to be without prej-
udice to any rights that we had, because we were going to take the positi6n
that they did not represent the men. We couldn't do that and bargain too.,
On April 11 Hessey wrote to Sheldon , stating in part :
.. : the Company feels that it should have positive assurance that District
Lodge No. 12 does represent a majority of its employees before continuing
negotiations.
Hessey and Sheldon met on April 28. Sheldon asked to "get the contract
signed." Hessey testified :
I then called his attention to my letter of April 11 , and the fact that I
can't bargain in view of the position which I have taken.
On May 12 Sheldon wrote to Hessey, requesting , among other things, that Hessey
set dates for further negotiations . It does not appear that Hessey replied to this-
letter. In any event , Hessey testified that since April 11, 1950:
I have not entered into any negotiation with Mr. Sheldon with respect to
a new contract.
Relevant facts as to the decertification petition , revealed by documents from
the Regional Office files and placed in evidence , show as follows . On March 9,
1950, 5 employees of the Respondent filed a petition for decertification at the
,Regional Office, claiming that 64 employees in the appropriate unit supported
the petition .' On March 15 the Regional Director formally notified the Union
and the Respondent that this petition had been filed, and that a field examiner
had been assigned to investigate the matter . On March 29 a field examiner
wrote to the petit i oners, voicing hope that they had obtained legal counsel and
had considered his recommendation that the petition be withdrawn without prej-
udice as being filed untimely . An informal conference was called , in the same
letter, for April 3. On April 19 the Regional Director formally notified the
petitioners , the Respondent , and the Union , that following investigation of the
petition he was "dismissing the petition in this matter ." On April 27 , Thomas
H. Hedrick , purporting to represent the petitioners , formally requested the
Board to review the action of the Regional Director in dismissing the petition.
.On May 12, 1950, all parties were formally notified by the Executive Secretary
of the Board that :
The Board has considered your request for review of the Regional Di-
rector's refusal to issue Notice of Hearing in the above matter and has
decided to sustain the Regional Director and dismiss the appeal for the
reason that the Employer and the IAM are entitled to a reasonable time
within which to effectuate the provisions of the settlement agreement executed
in Case No. 5-CA-194 free from rival claims and petitions , which reasonable
time has not yet elapsed.
C. Conclusions
The complaint alleges, the answer admits, the settlement agreement of Decem-
ber 1949 stated , and the Trial Examiner concludes and finds that a unit of the
2 Case No. . 5-RD-42.
POOLE FOUNDRY AND MACHINE COMPANY 41
Respondent's employees appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act consists of:
All production and maintenance employees, including tool makers, machin-
ists, machine operators, helpers and apprentices, except for office clericals,
watchmen, and all supervisors as defined by the Act.
The complaint alleges that at all times since December 5, 1946, the Union
has been the representative for the purposes of collective bargaining designated
by a majority of the Respondent's employees in the appropriate unit. At the
hearing counsel for the Respondent conceded, in effect, that at least as recently
as December 27, 1949, the date of the settlement agreement, the Union was the
majority representative.' The Trial Examiner concludes and finds that at all
times material herein the Union has been, and is now, by virtue of Section 9 (a)
of the Act, the exclusive representative of all the employees in the said unit for
the purposes of collective bargaining.
.
The complaint alleges and counsel for the Respondent as a witness conceded,
in effect, that since April 11, 1950, the Respondent has refused to bargain col-
lectively with the Union as the exclusive representative of its employees. At
the hearing, however, and in his brief, counsel for the Respondent urged that
upon being informed by the Regional Office of the existence of the decertification
petition the Respondent reasonably and in good faith declined to bargain further
unless and until the Union again consented to an election.
The Trial Examiner finds merit in this contention only for the limited period
from April 11 to April 19, 1950, the latter date being that of the Regional Di-
rector's formal notification to the Respondent that the decertification petition
was dismissed. Until April 19 there appears to have been justification and
merit in the Respondent's action, in view of the fact that on March 15 the
Regional Director had notified it of the petition's existence. Once being formally
advised, in effect, that any possible question as to representation was no longer
being entertained by the Board's Regional Director, the Respondent refused to
bargain at its own risk and responsibility. Its action from April 19 rested
solely upon substitution of its own judgment for that of the Board agent. Con-
gress vested in the Board alone the authority to determine whether or not "a
question of representation exists. The Respondent, so far as the record shows,
filed no petition raising the question. Nor did the Respondent, also so far as
the record shows, appeal the Regional Director's ruling upon the decertification
petition. Finally, as noted above, the Respondent was notified by the Board
itself that the Regional Director's action was sustained, and that "a reasonable
time" had not yet elapsed "within which to effectuate the provisions of the settle-
ment agreement . . . free from rival claims and petitions."
The Trial Examiner does not here presume to determine what period the
Board considers to be "reasonable." It is clear, however, that even before the
8 This finding rests upon the following excerpt from the transcript :
TRIAL EXAMINER. Do you concede that they did at that time?
Mr. HEROLD. We didn't have any reason to believe that they did not have a majority
at that time.
TRIAL EXAMINER. You did not raise any question as to majority?
Mr. HEROLD. No, sir, not at that time.
TRIAL EXAMINER. And the presumption is that you accepted their claim of majority,
or you wouldn't have agreed to bargain with them.
Mr. HEROLD. That is correct.
TRIAL EXAMINER. That as of the date of the settlement, you in effect conceded
that the Union did represent a majority?
Mr. HEROLD. That is the inference, I think, you might draw from that. We raised
no question as to whether or not they had a majority at that time. We "had ne
reason to believe they did not.
-4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's ruling on May 12, and at all times since then , the Respondent has re-
fused to bargain . By this action the Respondent has plainly refused to. "ef-
fectuate the provisions of the settlement agreement."
In summary , the Trial Examiner concludes and finds that at all times since
-April 19, 1950 , the Respondent has refused to bargain in good faith with the
Union as the exclusive bargaining agent of all its employees in the appropriate
unit. Thereby the Respondent has interfered with, restrained , and coerced its
- employees in the exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above , occurring
in connection with the operations of the Respondent described in Section I, above,
..have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States , and tend to lead to labor disputes burdening and ob-
-strutting commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
-Trial Examiner will recommend that it cease and desist therefrom and take
- certain affirmative action to effectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively with
the Union , thereby interfering with, restraining , and coercing its employees.
It will therefore be recommended that the Respondent cease and desist there-
from and, also , that it bargain collectively with the Union with respect to wages,
'hours, and other terms and conditions of employment , and if an understanding
is reached , embody such understanding in a signed , contract.
Upon the basis of the foregoing findings of fact, and upon the entire record
An the case , the Trial Examiner makes the following :
CONCLUSIONS of LAW
1. Lodge 211 , International Association of Machinists , is a labor organization
-within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the Respondent 's Baltimore
rplant, including tool makers, machinists , machine operators , helpers and appren-
tices, excluding office clericals , watchmen , and supervisors as defined by the Act,
constitute a unit appropriate for the purposes of collective bargaining within
Ahe meaning of Section 9 (b) of the Act.
3. Lodge 211 , International Association of Machinists , was, on December 27,
1949, and at all times since has been, the exclusive representative within the
-meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for
- the purposes of collective bargaining.
4. By refusing to bargain collectively with Lodge 211, International Associa-
•.tion of Machinists , as the exclusive bargaining representative of the employees
in the appropriate unit, the Respondent has engaged in and is engaging in unfair
- labor practices within the meaning of Section 8 ( a) (5) of the Act.
5. By said acts the Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act , thereby
-engaging in unfair labor practices within the meaning of Section - 8 (a) (1) of
=the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]