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).

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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.

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—

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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.

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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. 1 N. L. R. B. 349.

effect that all of the employees in the appropriate unit were members of the union and had designated a union committee to represent them in collective bargaining. At a later date, after the issuance of the report of the trial examiner, the respondent, in its exceptions, stated for the first time that the union did not and never had represented a majority of the employees. The Board stated:

A bare denial of a state of fact raised at this belated point in the proceedings, unmentioned in any answer to the allegations in the complaint, unsupported by evidence introduced by respondent or adduced by cross-examination of the union's witnesses, when respondent had full opportunity to raise the issue on any or all of these occasions, is insufficient to undermine the conviction carried by the uncontradicted testimony of the union's witnesses (p. 353).

In Matter of Atlantic Refining Company1 the evidence offered by the union consisted of two petitions circulated among the employees and signed by a majority of them, designating the locals of the union as representatives for the purposes of collective bargaining. This evidence was uncontested by the respondent, and was relied upon by the board.2

In Matter of Rabhor Company, Inc., and International Ladies' Garment Workers' Union, the Board, in considering the question of majority representation, found that 219 persons had been out on strike, and

had personally signed a strikers' roll at union headquarters and were receiving strike benefits from the union. This was more than half of the 350 workers in the plant. These figures are based on the number receiving strike benefits and, as such, are well authenticated and exactly determined. We have in the record the strike benefit pay roll for the week ending October 2, contemporaneously compiled, showing the name of each person, and, opposite his name, the signature of the person. By accepting and signing for a strike benefit, the signer asserted his position as a striker making common cause with other strikers (pp. 475-6).

In finding further that the union was the designated agent for collective bargaining, the Board stated:

The leadership of a strike is necessarily entrusted with the functions of collective bargaining during the strike. It has formulated the demands and called the strike to win them. It has constantly before it the problem of finding ways and means to achieve the objectives, and among the means one of the most important and most usual is collective bargaining' (p. 476).

In Matter of Greensboro Lumber Company and Lumber and Sawmill Workers Local Union No. 2688, United Brotherhood of Carpenters and Joiners of America, where the Board was of the opinion that more exact information would be necessary to determine whether the members of the union constituted a majority of employees in an

11 N. L. R. B. 359.

2 The locals had begun proceedings under both sec. 8, subdivision (5), and sec. 9 (c) of the act. The petition in the latter case was dismissed in accordance with the finding that there was majority representation. Other cases in which petitions signed by a majority of the employees were accepted by the Board as satisfactory evidence of the selection of representatives were: Matter of Canton Enameling & Stamping Company, 1 N. L. R. B. 402; Matter of Bell Oil and Gas Company, 1 N. L. R. B. 562; Matter of Edward E. Cox, Printer, Inc., 1 N. L. R. B. 594 (employees signed proxies). 1 N. L. R. B. 470.

See also Matter of the Timken Silent Automatic Company, 1 N. L. R. B. 335. For other cases in which the Board has found that the union represented a majority of the employees in an appropriate bargaining unit, see Matter of the Sands Manufacturing Company, 1 N. L. R. B. 546; Matter of S. L. Allen and Company, Incorporated, 1 N. L. R. B. 714; Matter of M. H. Birge & Sons Company, 1 N. L. R. B. 731; Matter of Columbia Radiator Company and International Brotherhood of Foundry Employees, Local No. 79, 1 N. L. R. B. 847.

appropriate unit, it dismissed the complaint as to the allegation that the respondent refused to bargain collectively, but stated that

the Board is anxious to effectuate for these employees their right to bargain collectively and will entertain a petition for an investigation and certification of representatives * (p. 636).

4. FULFILLMENT OF THE DUTY TO BARGAIN

The employer is not required to continue to bargain collectively with the representatives of its employees when negotiations already held indicate that to do so would be futile. In Matter of JefferyDeWitt Insulator Company, the Board stated the principle that after an impasse has been reached in negotiations between the employer and its employees, the employer may be justified in refusing to meet further with the employees on the basis that no agreement is possible. However, the situation may change, thus creating new cause for further negotiations. For example, in the case cited above, the impasse was dissolved through the occurrence of a strike and the intervention of disinterested third persons, and the Board said. that

if the respondent had been sincerely interested in using the procedure of collective bargaining as a means of promoting industrial peace it would have seized this as a most auspicious time to have met with Local No. 455 (p. 625).

In Matter of S. L. Allen & Company, Incorporated, where the alleged deadlock was found in reality to be a refusal to bargain by the employer, the Board went on to state that—

even if respondent had bargained in good faith before and directly after the strike, and an impasse had been reached, nevertheless, the employer may not always attempt to confine the union's subsequent efforts to secure a settlement to written offers which may be rejected or accepted without explanation. Interchange of ideas, communication of facts peculiarly within the knowledge of either party, personal persuasion, and the opportunity to modify demands in accordance with the total situation thus revealed at the conference is of the essence of the bargaining process. Where in the course of the strike supervening events, such as the formal discharge of the strikers and the importation of strikebreakers, introduce new issues, the employer must meet with the representatives of its employees in order to realize the full benefits of collective bargaining (p. 728).

In many cases, employers have advanced reasons for their failure to bargain collectively which are untenable. In Matter of International Filter Company, the employer sought to evade its duty to bargain collectively with the union as the representative of its employees on the ground that recognition of the union and meeting with the union representatives required entering into a closed-shop agreement. The Board stated:

The respondent's position that meeting with union representatives ipso facto draws it into a closed-shop agreement is too specious to merit serious consideration. Our experience has been that the cry of "closed shop" is constantly being raised by employers who seek an excuse to evade their duty to bargain collectively under the act and to obstruct and deny the right of employees to do so. There is not an iota of evidence that the union representatives in this case proposed a closed shop as part of an agreement. The respondent never permitted the chosen representatives of its machinist employees an opportunity to propose anything An unfounded apprehension that em

11 N. L. R. B. 618. 21 N. L. R. B. 714. 1 N. L. R. B. 489.

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ployees may demand a closed shop is no excuse for a flat refusal to bargain collectively (p. 499).

In Matter of Columbian Enameling & Stamping Company,1 where the union representatives were in fact seeking a closed shop, the Board stated that this fact alone did not preclude the necessity of collective bargaining, and that

The specific question to be asked is whether * ** the respondent was justified in believing that further negotiation would be fruitless and settlement of the strike beyond reasonable probability (p. 196).

Another example of an employer whose stated reason for refusing to bargain collectively was deemed inadequate is found in Matter of Harbor Boatbuilding Co.,2 wherein the Board stated that

It is clear that an employer cannot refuse to bargain collectively on the ground that his competitors have not entered into negotiations or made agreements with their employees (p. 335).

Again, in Matter of Rabhor Company, Inc., where the employer sought to excuse its refusal to meet with the union as the representative of its employees on the ground that the union brought the workers out on strike by false statements and promises, and induced strikers to engage in acts of violence, the Board found the argument to be irrelevant, and said:

Where groups are to be organized and moved into action it is not unusual for the leaders to promise more than can be secured or to indulge in some exaggeration. Indeed, it is one of the functions of collective bargaining to eliminate the misunderstandings that are bound to arise in these struggles and to resolve demands into what can be achieved. The act does not give to us the mandate to examine the speeches and the conduct of those whom the employees choose to follow, and to determine whether, in our opinion, they are worthy to lead. That is for the workers alone to decide (pp. 477-8).

In regard to the alleged violence, the Board stated further:

In any case the fact that during a strike, necessarily a time of heated emotions, the bounds of permissible conduct may have been overstepped by men or leaders cannot be used to deny to employees their full right of representation (p. 478).

In Matter of Columbia Radiator Company, the employees, dissatisfied with the shop representation plan in the employer's plant, became members of an outside union and designated the members of the former shop representation committee as their representatives on the union committee for the purposes of collective bargaining. The employer, having refused to bargain with the members of the committee, sought to justify its action on the ground that

it had no knowledge that the committee was acting as a union committee selected by the union members, but believed it was dealing with the shop committee elected by all of its employees (p. 852).

The Board stated:

we feel that reliance on this fact, by the respondent, indicates a confusion as to the issues involved. If the respondent failed to bargain collectively with the representatives selected by a majority of its employees, it committed an unfair labor practice, whether those representatives were a committee chosen by Local No. 79 or a committee elected under the shop representation plan (p. 852).

11 N. L. R. B. 181. 21 N. L. R. B. 349. 81 N. L. R. B. 470.