NATIONAL LABOR RELATIONS BOARD

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VI. LITIGATION 93 flict of opinion among the various Circuit Courts of Appeals as to whether an employer's refusal to enter into a signed contract with the representative of his employees, covering matters agreed upon, constituted a refusal to bargain within the meaning of section 8 (5). 7° That a refusal to embody terms agreed upon in a signed contract does constitute a refusal to bargain is now decisively settled by the Supreme Court.77 In reaching this result, the court called attention to the practice of administrative agencies dealing with labor relations and to the history of the collective bargaining process which shows that "refusal to sign a written contract has been a not infrequent means of frustrating the bargaining process," whereas "the signed agreement has been regarded as the effective instrument of stabilizing labor relations." 78 Employers duty to bargain! in good faith.—It is, of course, well settled that bona fide negotiation is inherent in the term "collective bargaining." The Circuit Courts of Appeals have had occasion to note many of the indicia of an absence of good faith on the part of employers in their bargaining relationships. An employer is not entitled to dictate an arbitrary method of proof of majority status such as a demand for a union's membership list. 78 He may not refuse an offer of a reasonable method of proof, such as a check of membership against pay roll by the Board or some other impartial agent,8° or a consent election conducted by the Board. 81 An absence of good faith may also be revealed by dilatory tactics during negotiations," or by unilateral action, or attempts to bargain with employees individually, concerning matters under discussion with the employees' representative." The sincerity of an employer's effort in negotiating with a labor organization may also be tested by the length of time involved in negotiations and the persistence with which the employer "offers opportunity for agreement." 84 It has also been held to be a refusal to bargain within the meaning of Section 8 (5) for an employer to take the position that all proposals must come from the union, and that his only duty is to accept or reject such proposals," or to reject a contract clause proposed by the union merely because it embodies no more than is already prescribed by law.86 " The First, Second, Fourth, Sixth, and Tenth Circuit Courts of Appeals bad held such a refusal to be a violation of section 8 (5) ; the Seventh Circuit Court of Appeals had held to the contrary. See H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514, 526n. 77 H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514. 526. " Idem, at 523-526. 7° N. L. R. B. V. Moitrup Steel Products Co., 121 F. (2d) 612 (C. C. A. 31. N. L. R. B. V. Mo/trup Steel Products Co., supra, n. 79; N. L. R. B. V. New Era Die CO., 118 F. (2d) 500 (C. C. A. 3) ; Solvay Process Co. v. N. L. R. B., 117 F. (2d) 83 (C. C. A. 5). N. L. R. B. V. Moitrup Steel Products Co., supra, n. 79; N. L. R. B. v. Schmidt Baking Co.. 122 F. (2 ,11 162 (C. C. A. 41. M N. L. R. B. V. Chicago Apparatus Co., 116 F. (2d) 753. 758-759 (C. C. A. 7) ; Singer Mfg. Co. V. N. L. R. B. 119 F. (2d) 131, 134-139 (C. C. A. 7) ; N. L. R. B. V. Acme Air Appliance Co., 117 F. (2d) 417. 418-421 (C. C. A. 2). N. L. R. B. v. Pilling & Son Co., 118 F. (2d) 32. 35-36 (C. C. A. 3) ; N. L. R. B. v. Acme Air Appliance Co., 117 F. (2d) 417, 420 (C. C. A. 2) ; Inland Lime & Stone Co. v. N. L. R. B., 119 F. (2d) 20. 22 (C. C. A. 7) ; N. L. R. B. V. Highland Shoe, Inc.. 119 F. (2d) 218, 221 (C. C. A. 1) ; N. L. R. B. V. Schmidt Baking Co., 122 F. (2d) 162. 163-164 (C. C. A. 4) : Oughton V. N. L. R. B., 118 F. (2d) 486, 498 (C. C. A. 3) ; N. L. R. B. v. Lightner Publishing Corp.. 113 F. (2d) 621, 625 (C. C. A. 7) ; Steuart Die Casting Corp. v. N. L. R. B.. 114 F. (2d) 849, 853 (C. C. A. 7). si N. L. R. B. v. P. Lorillard Co., 117 F. (2d) 921, 924 (C. C. A. 6), certiorari granted upon another issue, 313 U. S. 557. 85 N. L. R. B. V. Pilling & Son Co.. 119 F. (2d) 32,37 (C. C. A. 3) ; Inland Lime & Stone Co. v. N. L. R. B., 119 F. (2d) 20, 22 (C. C. A. 7). 88 Singer Mfa. CO. V. N. L. R. B., 119 F. (2d) 131, 138 (C. C. A. 7) ; N. L. R. B. V. Boss Mfg. Co., 118 F. (2d) 187, 188-189 (C. C. A. 7) (in contempt proceedings).
94 SIXTH ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARD And an insistence upon bargaining by mail coupled with a refusal to furnish representatives for "personal conferences" at the situs of the controversy has been held to be a refusal "to accept the process of collective bargaining." 87 EMPLOYEE STATUS UNDER THE ACT Effect of substantially equivalent employment.—The most important decision of the year relating to the question of employee status is Phelps Dodge Corp. v. N. L. I. B.,88 holding that a discharged employee who has obtained other regular and substantially equivalent employment does not thereby lose the status of an employee for the purposes of the Board's remedial action. The Court adopted the Board's view that section 2 (3) operates to limit the meaning of "employee" in sections 8 (5) and 9 (a) of the Act, but not in section 10 (c)." Supervisory employees.—The dual status of the supervisory employee, who is employer with respect to employees and employee with respect to his employer, has been expressly noted in several cases decided during the fiscal year. Attempts to escape responsibility for unfair labor practices against supervisors on the ground that as employers they are not entitled to the protection of the Act have been repudiated, N as has the contrary attempt to escape responsibility for unfair labor practices of supervisors on the ground that as employees they are entitled to participate in organizing activities.91 EMPLOYERS A number of interesting cases decided this year involve the definition of an employer under the Act. In N. L. R. B. v. Bac1ielder,92 the applicability of the statute to the labor practices of a receiver was sustained. In N. L. R. B. v. W. H. Carroll,03 it was held, in accordance with similar rulings under the Fair Labor Standards Act and the Social Security Act, 94 that an employer carrying mail under contract with the United States, cannot claim the exemption of the United States, and is an employer within the meaning of section 2 (2) of the Act. The rule of N. L. R. B. v. Kiddie Kovem Mfg. Co., that "it is the employing industry that is sought to be regulated," 95 was applied in a diversity of situations. In the Bach,elder case,w an order directed against a receiver, based upon the unfair labor practices of his predecessor, was sustained. In Bethlehem Shipbuilding Corp. v. N. L. R. B.,97 the corporation which had committed the unfair labor practices was merged, before issuance of the Board's order, into its parent corpora- "7 N. L. R. B. v. P. Lorillard Co., 117 F. (2d) 921,924 (C. C. A. 6), certiorari granted upon another issue, 313 U. S. 557. 313 U. S. 177. "Idem, at 190-192. 91 N . L. B. B. v. Skinner of Kennedy, 113 F. (25) 667, 671 (C. C. A. 8) ; Eagle-Picher Mining of Smelting Co. v. N. L. E. B., 119 F. (25) 903, 911 (C. C. A. 8). International Ase'n of Machinists V. N. L. R. B., 311 U. S. 72, 80-81; N. L. R. B. V. Christian Board of Publication, 113 F. (2d) 678, 682 (C. C. A. 8). "120 F (2d) 574 (C. C. A. 7). 03 120 F. (2d) 457 (C. C. A. 1). " Fleming v. Gregory, 36 F. Supp. 776 (F. D. La.) ; Magann V. Long's Baggage Transfer Co., Inc., decided July 5, 1941 (D. C. W. D. Va.) ; Thompson v. Daugherty decided July 31, 1941 (D. C. Md.) ; Social Security Act, Bureau of Internal Revenue Rulings, XVI-42— B992, S. S. T. 205, Internal Revenue Cumulative Bulletin 1937-2, pp. 438-440. 98 105 F. 25) 179, 183 (C. C. A. 6). 08 120 F. 2d) 574 (C. C. A. 7). "114 F. 2d) 930 (C. C. A. 1).
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SIXTH ANNUAL REPORT OF THE NATIONAL
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NATIONAL LABOR RELATIONS BOARD WILL
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TABLE OF CONTENTS Chapter Page I. A
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SIXTH ANNUAL REPORT OF THE NATIONAL
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I. A SUMMARY 3 In dealing with disp
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I. A SUMMARY 5 report is used as a
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ClIAPTE11 It THE NATIONAL LABOR REL
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II. THE NATIONAL LABOR RELATIONS ;
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III. STATISTICAL RECORD OF BOARD AC
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Ill. ,STATISTICAL RECORD OF BOARD A
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Metal mining Coal mining Crude petr
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TABLE 1 1.-Number of cases and numb
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Cases closed otherwise Cases closed
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Cases closed by compliance with int
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By consent election By pay-roll che
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TABLE 19.-Number of elections and p
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C. I. 0. alone I A. F. L:C. I. 0 2
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IV. PRINCIPLES ESTABLISHED 41 in wh
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Page 52 and 53: IV. PRINCIPLES ESTABLISIEIED 45 B.
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Page 80 and 81: IV. PRINCIPLES ESTABLISHED 73 ORDER
Page 82 and 83: IV. PRINCIPLES VSTABLISHED 75 the r
Page 84 and 85: I V. PRINCIPLES ESTABLISHED 77 more
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Page 88 and 89: V. JURISDICTION 81 and outgoing int
Page 90 and 91: CHAPTER VI LITIGATION A decided inc
Page 92 and 93: VI. LITIGATION 85 parties constitut
Page 94 and 95: • VI. LITIGATION 87 B. PRINCIPLES
Page 96 and 97: VI. LITIGATION 89 Antiunion stateme
Page 98 and 99: VI. LITIGATION 91 when none is in e
Page 102 and 103: VI. LITIGATION 95 Lion. The Board's
Page 104 and 105: VI. LITIGATION 97 Court ruled that
Page 106 and 107: VI. LITIGATION 99 rial ; 32 to refu
Page 108 and 109: VI. LITIGATION 101 Other procedural
Page 110 and 111: VI. LITIGATION 103 D. SPECIAL LITIG
Page 112 and 113: VI. LITIGATION 105 B. APPLICATION O
Page 114 and 115: APPENDIX A REGIONAL OFFICES—LOCAT
Page 116 and 117: APPENDIX A Region 11, Architects In
Page 118 and 119: APPENDIX B CASES HEARD DURING THE F
Page 120 and 121: APPENDIX B 113 Jackson Cookie Co.,
Page 122 and 123: APPENDIX B 115 Western Printing Co.
Page 124 and 125: APPENDIX B 117 Chrysler Corporation
Page 126 and 127: APPENDIX B 119 Hardy Mfg. Co., owne
Page 128 and 129: APPENDIX B 121 Missouri Rolling Mil
Page 130 and 131: APPENDIX B 123 Selznick Internation
Page 132 and 133: APPENDIX B 125 Westinghouse Electri
Page 134 and 135: APPENDIX C 127 Vol. No. Fletcher Pa
Page 136 and 137: APPENDIX C 129 Vol. No. Texarkana B
Page 138 and 139: APPENDIX C 131 Vol. No. Sanderson,
Page 140 and 141: APPENDIX c 133 Vol. No. Cambridge I
Page 142 and 143: APPENDIX C 135 Vol. No. Gliden Buic
Page 144 and 145: APPENDIX C 137 Vol. No. Lowenstein
Page 146 and 147: APPENDIX C 139 Vol. No. Radio Wire
Page 148 and 149: APPENDIX C 141 Vol. No. Universal P
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APPENDIX C 143 Vol. No. General Mot
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APPENDIX D 145 Valley Mould CC Iron
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APPENDIX D 147 (b) Board orders enf
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APPENDIX D 149 Circe-Simplex Corp.,
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APPENDIX D 151 Seventh Circuit B. Z
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APPENDIX D 153 Pacific Grape Produc
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APPENDIX D 155 Eighth Circuit N. L.
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