Annual Report of the National Labor Relations Board for the Fiscal Year Ended ...

challenging the composition of their unit or employing other dilatory tactics to thwart their efforts to reach an agreement with him (p. 584).

Other criteria of good faith were discussed in Matter of Edward E. Cox, Printer, Inc., and International Printing Pressmen and Assistants' Union, Local No. 376, where the Board held that the respondent did not fulfill its obligations by

listening to a committee member read the proposed agreement and then turning the proposals down in their entirety without submitting counterproposals or entering into an honest and sincere discussion of the proposals (p. 600).

In Matter of S. L. Allen & Company, Incorporated, and Federal Labor Union Local No. 18526,2 the Board enunciated the principle that

To meet with the representatives of his employees, however frequently, does not necessarily fulfill an employer's obligations. A construction of the collective bargaining provision which overlooked the requirement that a bona fide attempt to come to terms must be made, would substitute for nonrecognition of the employees' representatives the incentive simply to hamstring the union with endless and profitless "negotiations." In the absence of an attempt to bargain in good faith on the employer's part, it is obvious that such "negotiations" can do nothing to prevent resort to industrial warfare where a dispute of this nature arises (p. 727).

In Matter of M. H. Birge & Sons Company, the Board found that the employer exhibited its bad faith by deliberately misrepresenting conditions concerning which the negotiations were held. The Board stated:

Such distortion of the situation obviously transcends the exaggerations that often accompany negotiations in this field; it reveals a determination to thwart the process of collective bargaining, to render it wholly ineffective (p. 744).

In Matter of Pioneer Pearl Button Company and Button Workers' Union, Federal Local 20026, the Board said that the assertions of the respondent that its financial condition was poor, when it refused either to prove its statement or to permit independent verification, was insufficient to relieve it of the obligation to bargain collectively."

(c) Collective bargaining distinguished from adjustment of individual grievances.-Where a majority of the employees in an appropriate unit have designated or selected representatives for the purposes of collective bargaining, the duty of the employer under the act remains undischarged by the mere adjusting of individual griev

ances.

In Matter of Atlantic Refining Company, the Board stated:

That all individual complaints as to working conditions have at all times been satisfactorily settled does not constitute a proper discharge of the respondent's obligations under section 8, subdivision (5) of the act, and cannot be said to preclude the employees from engaging in an effort to bargain concertedly with their employer on matters of wages, hours, and basic working conditions' (p. 368).

11 N. L. R. B. 594. 21 N. L. R. B. 714.

1 N. L. R. B. 731.

41 N. L. R. B. 837.

See also Matter of Atlas Bag and Burlap Company, Inc., and Milton Rosenberg, organizers, Burlap & Cotton Bag Workers Local Union No. 2469, affiliated with United Tea tile Workers Union, 1 N. L. R. B. 292; Matter of Harbor Boatbuilding Co. and Ship Carpenters Local Union No. 1835, 1 N. L. R. B. 349. 1 N. L. R. B. 359.

See also Matter of Pennsylvania Greyhound Lines, Inc., Greyhound Management Company, and Local Division No. 1063 of The Amalgamated Association of Street Electric Railway and Motor Coach Employees of America, 1 N. L. R. B. 1.

employer to accede to demands of the employees. However, before the obligation to bargain collectively is fulfilled, a forthright, candid effort must be made by the employer to reach a settlement of the dispute with his employees. Every avenue and possibility of negotiation must be exhausted before it should be admitted that an irreconcilable difference creating an impasse has been reached. Of course no general rule as to the process of collective bargaining can be made to apply to all cases. The process required varies with the circumstances in each case. But the effort at collective bargaining must be real and not merely apparent (p. 546).

On the other hand, it is not requisite to collective bargaining that an agreement should actually be achieved. In Matter of JefferyDeWitt Insulator Company and Local No. 455, United Brick and Clay Workers of America, the Board, in finding that there was a refusal to bargain collectively on and after July 16, 1935, nevertheless stated that

* *

the respondent did engage in collective bargaining with Local No. 455 on and prior to June 20, 1935, even though no agreement had been reached by the parties. Despite the fact ** that the respondent's good faith in some of its earlier dealings with Local No. 455 is questionable, the fact that the respondent offered to enter into an agreement with Local No. 455 on June 1, accepting some of its demands, and met frequently with Local No. 455 in the period from June 1 to 20, 1935, to discuss the proposals and counter-proposals, leads us to believe that the bargaining by the respondent at that time was done in good faith. It is undoubtedly true that an impasse had been reached by the parties on June 20, 1935, on the three substantive issues of seniority, union shop and check-off, Local No. 455 being unyielding in its demands concerning these issues. the respondent equally firm in its refusal to recede from its position. As long as this impasse costinued the respondent might have been justified in refusing meet with the committee on the basis that no agreement was possible (p. 624). The manner and extent of negotiations necessary to constitute collective bargaining may vary from case to case. In Matter of M. H. Birge & Sons Company and United Wall Paper Crafts of North America, the Board stated that

The question of whether an employer has failed in his affirmative duty to bargain collectively with the representatives of his employees has meaning only when considered in connection with the facts of a particular case. The history of the relationships between the particular employer and its employees, the practice of the industry, the circumstances of the immediate issue between the employer and its employees are all relevant factors that must be given weight. Consequently, a proper evaluation of the respondent's conduct requires a consideration of the labor relations background of the industry and the actions of the other union manufacturers in the period under examination (p. 739). * ** The respondent's refusal to meet with the union on September 17 was a definite break with the method of conducting labor relations that for long had been firmly established in the industry, and which the respondent itself had consistently pursued over a long period of years. When considered in relation to that method, the refusal and the events preceding the definite step constitute a refusal to bargain collectively within the meaning of section 8, subdivision (5) of the act (pp. 743-4).

(b) The requirement of good faith.-The Board has repeatedly asserted that good faith on the part of the employer is an essential ingredient of collective bargaining. In Matter of Bell Oil and Gas Company and Local Union 258 of the International Association of Oil Field, Gas Well, and Refinery Workers of America, et al.,3 the Board stated that

The obligation to bargain collectively requires considerably more of an employer than merely meeting with the representatives of his employees and then

11 N. L. R. B. 618.

21 N. L. R. B. 731.

challenging the composition of their unit or employing other dilatory tactics to thwart their efforts to reach an agreement with him (p. 584).

Other criteria of good faith were discussed in Matter of Edward E. Cox, Printer, Inc., and International Printing Pressmen and Assistants' Union, Local No. 376,1 where the Board held that the respondent did not fulfill its obligations by

In Matter of S. L. Allen & Company, Incorporated, and Federal Labor Union Local No. 18526,2 the Board enunciated the principle that—

To meet with the representatives of his employees, however frequently, does not necessarily fulfill an employer's obligations. * * A construction of the collective bargaining provision which overlooked the requirement that a bona fide attempt to come to terms must be made, would substitute for nonrecognition of the employees' representatives the incentive simply to hamstring the union with endless and profitless "negotiations." In the absence of an attempt to bargain in good faith on the employer's part, it is obvious that such "negotiations" can do nothing to prevent resort to industrial warfare where a dispute of this nature arises (p. 727).

ances.

In Matter of Atlantic Refining Company, the Board stated:

11 N. L. R. B. 594.

1 N. L. R. B. 714. 1 N. L. R. B. 731.

1 N. L. R. B. 837.

See also Matter of Atlas Bag and Burlap Company, Inc., and Milton Rosenberg, organizers, Burlap & Cotton Bag Workers Local Union No. 2469, affiliated with United Textile Workers Union, 1 N. L. R. B. 292; Matter of Harbor Boatbuilding Co. and Ship Carpenters Local Union No. 1835, 1 N. L. R. B. 349.

1 N. L. R. B. 359.

In Matter of International Filter Company and International Association of Machinists, District No. 8,1 the Board said that—

The presence or absence of "problems" or "grievances" on the part of employees has nothing to do with their right, under the act, to self-organization and collective bargaining through representatives of their own choosing (p. 498).

(d) Bargaining with individual employees.-The attempt on the part of an employer to avoid collective bargaining through bargaining individually with his employees constitutes a violation of the act. In Matter of Columbian Enameling & Stamping Co. and Enameling & Stamping Mill Employees Union No. 19694,2 the Board found that though the respondent

was now in contact with its employees' representatives, though negotiations had been initiated looking to the settlement of the strike, the respondent continued to solicit individual employees to return to work and at the same time refused to engage in the negotiations. Thus, the employees had no channel through which to arrange their return to work as an organized group, conformably to the decision of that group. By its tactics, the respondent emasculated the union as an effective instrument of employee representation. We hold that by so doing it has engaged in unfair labor practices within the meaning of section 8, subdivisions (1) and (5) of the Act (p. 198).

Again, in Matter of Atlas Bag and Burlap Company, Inc., and Milton Rosenberg, Organizer, Burlap & Cotton Bag Workers Local Union No. 2469 Affiliated with United Textile Workers Union, the obtaining by an employer of individual contracts of employment with employees in place of bargaining with the designated representatives of the majority was held to constitute an unfair labor practice under the act.

3. THE MAJORITY RULE

(a) Exclusive representation. In accordance with section 9 (a) of the act, the Board has ruled that it is an unfair labor practice for an employer to refuse to bargain collectively and exclusively with representatives selected by the majority of the employees in an appropriate unit. In Matter of Atlantic Refining Company, the contention of the employer that the designated representatives of a majority of the employees had no right to bargain for all the employees of the plant and the consequent refusal to negotiate with the representatives were held to constitute a violation of the act."

An employer cannot enter into negotiations with any group purporting to bargain for all the employees, in preference to the actual representatives designated or selected for such purposes by a majority of the employees. In Matter of The Sands Manufacturing Com

11 N. L. R. B. 489.

21 N. L. R. B. 181.

See Matter of The Timken Silent Automatic Company, 1 N. L. R. B. 335; Matter of Jeffery-DeWitt Insulator Company, 1 N. L. R. B. 618: Matter of Rollway Bearing Company, Inc., and Federal Labor Union 18482, 1 N. L. R. B. 651.

41 N. L. R. B. 292.

5 The question of what is a unit appropriate for the purpose of collective bargaining is discussed on p. 89.

1 N. L. R. B. 359.

Other decisions dealing with the failure or refusal of an employer to bargain with the designated or selected representatives of a majority of the employees are as follows: Matter of Columbian Enameling & Stamping Co., 1 N. L. R. B. 181; Matter of Atlas Bag and Burlap Company, Inc., 1 N. L. R. B. 292; Matter of The Timken Silent Automatic Company 1 N. L. R. B. 335; Matter of The Canton Enameling & Stamping Company,

pany,' the employer shut down its factory in consequence of a dispute with the union representing a majority of the employees and later reopened the factory after successful negotiations with a union which did not so represent a majority. The Board held that the employer was unjustified in altering the status quo without bargaining with the prior union as the exclusive representative of the employees.

In addition to the right initially to designate or select representatives for the purposes of collective bargaining, the employees in an appropriate bargaining unit may exercise discretion in the matter of changing their representatives at any time. In Matter of New England Transportation Company and International Association of Machinists, the Board asserted the principle that—

The whole process of collective bargaining and unrestricted choice of representatives assumes the freedom of the employees to change their representatives (p. 138).

This was held to be so in spite of alleged existing agreements in force between the employer and some of its employees.

(b) Determination of majority.-In cases involving collective bargaining, where it is alleged that the labor organization represents a majority of the employees in an appropriate unit, it is necessary to determine the truth of the allegation. In the absence of satisfac tory proof, the employees may petition the Board for an investigation and certification of representatives under the provisions of section 9 (c) of the act. This procedure is not necessary, however, where the employees or their representatives can produce satisfactory evidence of a majority. The nature and amount of evidence which the Board will require will of necessity depend upon the situation in each case.

In Matter of Delaware-New Jersey Ferry Co. and Marine Engineers' Beneficial Association, No. 13, the respondent's answer questioned the authority of the union to represent the employees. At the hearing the union introduced in evidence cards signed by 11 of the 12 employees in the appropriate unit authorizing the union to represent them in collective bargaining with the respondent. There was also uncontroverted evidence that all 12 of the employees were members in good standing of the union. The Board accepted this evidence as sufficient proof. In Matter of Atlas Bag & Burlap Co., Inc. the union proved that it represented a majority of the employees by placing in evidence membership applications signed by 13 of the 18 employees in the appropriate unit, together with testimony that membership in the union included representation through the union for the purposes of collective bargaining.

In Matter of Harbor Boatbuilding Co. and Ship Carpenters Local Union, No. 1335, the respondent filed no answer to the allegation of the complaint that a majority of the employees had designated the union as their representative for purposes of collective bargaining. At the hearing the union introduced uncontroverted testimony to the

See also Matter of International Filter Company, 1 N. L. R. B. 489.

1 N. L. R. B. 292.

Similarly, a membership list was introduced in evidence by the union in Matter of Jeffery-DeWitt Insulator Company, 1 N. L. R. B. 618. 31 N. L. R. B. 349.

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