J. - National Labor Relations Board

VII. PRINCIPLES ESTABLISHED 65employees constitutes an infringement of section 8 (5) of the act.Such refusal may manifest itself in various forms. Thus, it is clearlya refusal to bargain where an employer responds to a union's requestto bargain collectively by promoting individual contracts with hisemployees," or where he attacks the union and attempts to undermineits majority status.58In Matter of Reed & Prince Manufacturing Company and SteelWorkers Organizing Committee 59 the exclusive bargaining representativeof the employees called a strike to secure from the employeramong other things an arbitration agreement. The respondent contendedthat its obligation within section 8 (5) was excused becausethis strike was "unlawful and illegal" under state law. The Boardrejected this contention, stating:Nothing in the language of the Act affords any support for such a proposition.Nor would such a construction of the Act tend to effectuate its spirit or purposes.The objective of the Act is to substitute collective bargaining for industrialwarfare by requiring that an employer shall bargain collectively with the freelychosen representatives of his employees. If this objective is to be achieved it isfully as important that the bargaining process be as available during the courseof a strike as prior to or subsequent to a strike. And the fact that the strike maybe tortious or enjoinable does not alter the situation. Were the respondent'sargument to be accepted it would mean that, at the very point when an industrialcontroversy becomes most bitter and when the collective bargaining provisionsof the Act should provide a peaceful weans of settlement, those provisions arecast aside and the employer is permitted to engage in unrestricted violationthereof.Section 8 (5), of course, does not require an employer to bargaincollectively with a union which has not been designated by a majorityof the employees in an appropriate unit. The Board, accordingly, hasrefused to find a violation of section 8 (5) unless the designated representative,on request, shows the employer that it has been thus selected.The employer, however, cannot evade its obligation to bargain collectivelyby failing to cooperate with the exclusive representative inmaking such showing. 6° Thus an employer who refused to consent toan election by the Board to determine the question of majority, butinsisted instead that the union submit to him a list of its members, washeld to have violated section 8 (5) of the act where, in fact, the union"Matter of The Stolle Corporation and Metal Polishers, Buffers, Platers and HelpersInternational Union. 13 N. L. R. B., No. 44; Matter of Newark Rivet Works and UnityLodge No. 420, United Electrical and Radio Workers of America, C. I. 0., 9 N. L. R. B.498. Cf. Matter of Williams Coal Company and United Mine Workers of America, DistrictNo. 23, 11 N. L R. B. 579, petition for enforcement Wed July 28, 1939 (C. C. A. 6). wherethe Board found that the respondent had engaged in unfair labor practices within themeaning of section 8 (1) of the act by attempting to modify a contract with a unionthrough individual bargaining with its employees." Matter of Chicago Apparatus Company and Federation of Architects, Engineers, Chemistsand Technicians, Local 107, 12 N. L. R. B. 1002. The Board said in this case:"Where a labor organization representing a majority of employees in an appropriate unitseeks to bar gain collectively, an employer s attempt to destroy such majority and thus torelieve himself of his obli gations under Section 8 (5) of the act is as patently a refusalto bargain within the meaning of section 8 (5) as a forthright refusal to meet withrepresentatives of a labor organization clothed with the right to exclusive recognition• • '0 . The respondent, in seeking to destroy the majority status of the Union. immediatelyfollowing the Union's request to bargain and its asserted intention to invoke theservices of the Board in demonstrating its majority. plain ly showed that it was solelyInterested in avoiding its oblioation to bargain with the Union."59 12 N. L. R. B. 944. Cf. N. T,. R. R. v. Remington Rand, Inc., 94 F. (2d) 862 SC. C.A. 2), certiorari denied, 58 S. Ct. 1046, enforcing Matter of Remington Rand. Inc., andRemington Rand Joint Protective Board of the District Council Office Equipment Workers,where the court said "• '0 • though the union may have misconducted itself, it hasa locus poenitentiae; if it offers in good faith to treat, the employer may not refusebecause of its past sins."a° Third Annual Report, pp. 105-6.