Capitol Automatic Music Co., Inc.

In the Matter Of CAPITOL AUTOMATIC MUSIC Co., INC. and UNITED COIN MACHINE EMPLOYEES UNION, LOCAL 254, U. R. W. & D. S. E. A., C. I. O. and LOCAL UNION 786, INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS, A. F. OF L., PARTY TO THE CONTRACT Case No. C-3436.=Decided February 16, 1943 Jurisdiction : coin-operated electric phonograph, leasing, selling, and servicing industry. Unfair Labor Practices Interference, Restraint, and Coercion-Collecttive Bargaining: majority estab- lished by certification ; loss of majority attributable to employer's unfair labor practices, immaterial-refusal to bargain collectively by : refusing to discuss or sign contract with union certified following Board election while assisting and entering into closed-shop, check-off, contract with rival union. Remedial Orders: upon request, to bargain collectively with certified union; withdraw recognition from assisted union and desist from giving effect to con- tract with that union. Unit Appropriate for Collective Bargaining : repairmen, collectors, delivery men ind helpers, exclusive of office and clerical employees, solicitors, and super- visory employees ; stipulation as to. DECISION AND ORDER On November 30, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged and was engaging in certain unfair labor practices, and 1 recommending that it cease and desist therefrom and take certain affirmative action as set out in the copy of the Intermediate Report attached hereto.' Thereafter the respondent and Local 786 filed excep- tions to the Intermediate Report, and Local 786 filed a brief and sup- ,plemental brief in support of its exceptions. Local 254 also filed a brief. Pursuant- to notice, a hearing was held before the Board in Washington, D. C., on January 28, 1942, for the purpose of oral argu- ment. Local 254 and Local 786 were represented by counsel and participated in the argument. The respondent filed a written state- ment in lieu of oral argument. The Board has considered the rulings of the Trial Examiner made at the hearing and in the Intermediate Report, and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate 47 N. L. R. B, No. 86. 639 i 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Report, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial 'Examiner. In addition, we note that in or about the first week in March 1942, the respondent's president, Goetz, Was informed that Local 786 was willing to waive a condition which has theretofore constituted the "real reason" for the respondent's opposition to dealing with Local 786.1 This circumstance, we think, lends further support to the Trial Examiner's findings, in which we concur, that the respondent -refused to negotiate with Local 254 on or about March 5; and that thereafter it assisted Local 786 in securing the membership of its employees. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Capitol Automatic Music Co., Inc., and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Coin Machine Employees Union, Local 254, U. R. W. & D. S. E. A., affiliated with the Congress of Industrial Organizations, as the exclusive representa- tive of all repairmen, collectors, delivery men and helpers employed by the respondent, exclusive of office and clerical employees, solicitors and supervisory employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Giving effect to its contract, commencing as of May 5, 1942, with Local Union 786, International Brotherhood of Electrical Work- ers; affiliated with the American Federation of.Labor, and to any .ex- tension, renewal, modification, or supplement thereof ; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join,'or assist labor•organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in ,concerted activ- ities for the purposes of collective bargaining or other 'mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : I Goetz so testified . It appears from Goetz 's testimony that the respondent had resigned from an association of employers which had a collective bargaining agreement with Local 786 ; and that Goetz had been under the impression that unless the respondent rejoined the association, the respondent would not be able to come to any agreement relative to its employees , with Local 786. According to Goetz , he had opposed any connection with Local 786 "on account of that Association tie up " However, on the occasion in question, Goetz learned that Local 786 would agree to enter into a separate contract with the re- spondent, if the respondent's employees were to join that union. CAPITOL AUTOMATIC MUSIC CO., INC. 641 (a) Upon request, bargain collectively with United Coin Machine Employees Union, Local 254, U. R. W. & D. S. E. A., affiliated with the Congress of Industrial Organizations, as the exclusive represent- ative of all repairmen, collectors, delivery men and helpers employed by the respondent, exclusive of office and clerical employees, solicitors and supervisory employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment;,. (b) Withdraw all recognition from Local Union 786, International Brotherhood of Electrical Workers, affiliated with the American Fed- eration of Labor, as the representative of its employees for the pur- pose of dealing with the respondent concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, and other conditions of employment;" )A, '(c) Post immediately in conspicuous places throughout its plant and maintain for a period of at least sixty (60) consecutive days from, the date of posting, notices to its employees stating (1) that the re- spondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) hereof; and (2) that the respondent will take the affirmative action set forth in para- graphs 2 (a) and (b) hereof; (d) Notify the Regional Director for the Second Region in writing within teii" (10) days from the date of this Order what steps the respondent has taken to comply herewith. INTERMEDIATE REPORT Mr. Martin I. Rose, for the Board. Mr. Charles V. Sally, Jr, of New York, N. Y., for the respondent. Mr. Charles R Katz, of New York, N. Y., for Local 254. Mr. Samuel Mezansky, of New York, N. Y., for Local 786. Mr. Victor Peterfesa, of Flushing, L. I., New York, for "the employees STATEMENT OF THE CASE Upon charges duly filed on June 4, 1942, by the United Coin Machine Employees Union, Local 254, U. R. «' & D. S. E. A, affiliated with the Congress of Indus- trial Organizations, herein called Local 254, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York, N. Y ), issued its complaint dated October 29, 1942, against the Capitol Automatic Music Co., Inc,' herein called the respondent, alleging that the re- spondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act Concerning the unfair labor practices , the complaint alleged in substance that : (1) on or about February 24, 1942, and at all times thereafter, the respondent refused to bargain collectively with Local 254, although Local 254 had been designated as collective bargaining agent prior thereto by a majority of the re- spondent's employees in an appropriate bargaining unit ; ( 2) the respondent from March 27, 1942, to the date of the complaint , disparaged and expressed disapproval 513024-43-vol. 47--41 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Local 254; ' urged, persuaded, threatened, and warned its employees to refrain from assisting, becoming members of, or remaining members of Local 254; (3) from, March 27, 1942, to the date of the complaint the respondent urged, persuaded, threatened, and warned its employees to assist, become members of, or remain members of Local 786, and assisted Local 786 in recruiting its employees as mem-' hers; (4) on or about May 29, 1942, the respondent entered into a collective bar-' gaining agreement with Local 786 covering its employees, although Local 786 at that time did not represent an uncoerced majority of its employees in an appro- priate bargaining unit; (5) Local 786 was maintained, assisted, or supported by the above acts of the respondent; (6) because of the above acts of the respondent the agreement described above between the respondent and Local 786 is invalid and in violation of the Act; and (7) by the acts described above the respondent, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the respondent, Local 254, and Local 786 At the hearing counsel for the respondent and counsel for Local 786 orally stated that they proposed to file answers denying that respondent had engaged' in unfair labor practices as alleged in the complaint, and stated further that Local 786 had in no wise been dominated or assisted by the respondent. No answers were filed. , Pursuant to proper notice a hearing was held November 9, 10, and 11, 1942,' at New York, New York, before the undersigned, the Trial Examiner duly desig- nated by the Acting Chief Trial Examiner. The Board, the respondent, Local 786, and Local 254 were represented by counsel. Victor Peterfesa, who claimed to represent "the employees" of the respondent, was permitted to enter an ap-, pearance. All participated in the hearing Full opportunity to'be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the Board's case, counsel for the respondent and counsel for Local 786 moved to dismiss the complaint. The motions were denied. At the conclusion of the hearing counsel for the Board moved to conform the complaint to the proof with respect to names, dates, and places. This motion was granted without objection. At the end of the hearing counsel for the respondent and counsel for Local 786 renewed their 'motions to dismiss the complaint. The undersigned reserved ruling on the mo- tions. They are hereby denied. Counsel for the parties argued the matter orally before'tbe undersigned and stated that they did not desire to file briefs with the Trial Examiner. Upon the entire record in this case and from his observation of the witnesses, the undersigned makes the following: - FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a New York corporation having its principal office and place of business in New York City. It leases, rents, and sells coin-operated automatic electrical phonographs to places of public resort in New York and' New Jersey. The respondent services the phonographs leased, rented, and sold in these States. About,100 of the respondent's 750 machines are located in New' Jersey, the remainder are in New York. The respondent also sells phonographs to purchasers located outside the area in which servicing is practicable. It has sold and shipped phonographs to pur- chasers in Porto Rico, Mexico, Hawaii , Florida, and Pennsylvania . During the CAPITOL AUTOMATIC MUSIC-CO., INC. - 643 2-d=ear period preceding the hearing the respondent purchased 10 phonographs within the State'of New York and 75 in the State of Illinois The respondent purchases phonograph records principally from rnanufac- 'turers in New York and New Jersey but has also received such records from the State of California. During the 2-year period preceding the hearing the respondent purchased phonograph records valued at approximately $39,000, 'of which approximately 25 percent were purchased outside the State of Nei York.' After they have been used, such records are sold locally. The respondent's annual income averages from $150,000 to $160,000, of which amount about 5 percent is derived from records, about 10 percent from sales of phonographs, and about 85 percent from fixed rentals or commissions. The respondent's annual income from its business in New Jersey averages approxi- mately $17,000. In New York City the respondent maintains a display room and a work shop for repairing and refinishing phonographs It employs solicitors to locate sites for the placement of its phonographs, delivery men to transport them, and col- lectors who call weekly at all locations to collect coins, change records, make minor adjustments, and report customers' requests for records. Weekly, the two'New Jersey collectors report at the New York office for settlement of accounts. Two trucks owned by the respondent make regular weekly trips to New Jersey- All phonographs are sent out and placed from the office in New York City and when major repairs are necessary are returned to the work shop in New York City. The respondent admits that it is engaged in interstate commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED United Coin Machine Employees Union, Local 254, U R. W. & D S. E. A., affiliated with the Congress of Industrial Organizations, and Local Union 786, International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, are labor organizations admitting to membership employees of the respondent. III. 'THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively ; interference , restraint, and coercion 1. The appropriate unit The complaint alleged and the parties stipulated that "all repairmen, collectors, delivery men and helpers employed by the respondent, exclusive of office and clerical employees, solicitors and supervisory employees," constitute an appro- priate bargaining unit. This was the same appropriate bargaining unit agreed to and used in the election conducted by the Regional Office of the Board on February 6, 1942. The undersigned finds that all repairmen, collectors, delivery men and helpers employed by the respondent, exclusive of office and clerical employees, solicitors and supervisory employees, at all times material herein constituted and that they now constitute a unit appropriate for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, or other con- ditions of employment, and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Representation by Local 254 of a majority in the appropriate unit On February 6, 1942, by agreement between the respondent and Local 254 the Regional Office of the Board conducted an election among the respondent's em- ployees in the unit found above to be appropriate. Of the 16 eligible employees who voted in the election 15 selectedt Local 254 as their collective bargaining agent. The undersigned finds that on and ,at all times after February 6, 1942, Local 254 was the duly designated representative of a majority of the employees in the aforesaid appropriate unit and that by virtue of Section 9 (a) of the Act, Local 254 at all such times was the exclusive representative of all the employees in such unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. 3. The refusal to bargain; respondent's acts of assistance and support to Local 786 The determinative issiTes in this matter are twofold; namely, did the re- spondent refuse to bargain collectively with Local 254, and did it render as- sistance to Local 786. From the results of the consent election and the stipula- tion of the parties regarding the appropriate unit it is clear and uncontested that Local 254 represented all of the employees in the appropriate unit from the time of the election on February 6 until the middle of March 1942. Both the respondent and Local 786 denied that Local 254 represented a majority of the employees after the middle of March, in view of the fact that a-majority signed applications for membership in Local 7S6 at that time. Local 254 had a collective bargaining agreement with the respondent which expired January 15, 1942. Prior to the expiration of the agreement, Local 254 advised the respondent by letter that it desired to enter into negotiations for the purpose of renewing the agreement. The respondent advised Local 254 that it would enter-into such negotiations provided that Local 254 demonstrated that it still represented a majority of the respondent's employees. To this, Local 254 agreed and the election conducted by the Board followed on February 6, 1942. Prior to the holding of the election the Board notified Local 786 by letter that the election was to be held and advised Local 786 that its name would be placed on the ballot if Local 786 so desired. Local 786 did not reply to the letters of the Board and consequently its name did not appear on the ballot. Charles Lichtman, business manager of Local 254, testified that on February 14 when he received the Board's certificate of the results of the election showing that Local 254 had won, he called William Goetz, president of the. respondent, and inquired about opening negotiations on the contract. He testified that Goetz told him to come in and that they would discuss the matter. Lichtman and Gordon, president of Local 254, testified and Goetz admitted that they met on a number of occasions after February 14. The record shows that, either together or singly, Lichtman and Gordon met with Goetz in his office on March 4, 5, 18, 27, and early in the month of May 1942. Lichtman and Gordon testified that every time they met with Goetz during the above period they re- quested'that Goetz sign a contract with Local 254 in accordance with his agree- ment that he would do so provided that Local 254 won the election conducted by the Board. They also testified that they had submitted to Goetz before the March 5 conference a copy of the proposed contract that they desired to discuss, and that another copy was given to Goetz at the March 5 conference. They testi- CAPITOL AUTOMATIC MUSIC CO., INC. 645 fled that, Goetz steadfastly refused to discuss or sign a contract with Local 254, stating that Local 254 was not strong enough to give him protection from picket- ing by Local 786, and that he was going to sign a contract with Local 786. Goetz, while admitting that he met with Lichtman and Gordon during the above period, denied that they ever supplied him with a copy of a proposed contract for discussion, or that they ever requested him to sign a contract with them. He testified that the only matter discussed at such conferences was picketing by Local 786. So far as the refusal to bargain is concerned, it resolves itself into a resolution of the conflicting testimony set out above. There are a number of factors which lead to acceptance of the testimony of Lichtman and Gordon and the rejection of Goetz's testimony. The testimony is undisputed that prior to the expiration of its old contract Local 254 requested that Goetz enter into negotiations for a new contract, and that he agreed to do so, provided that Local 254 demonstrate that it still represented a majority of his employees. Fifteen out of sixteen employees who voted at the February 6 elec- tion voted for Local 254. The respondent's only objection was thus removed. It seems highly improbable to the undersigned that with the decks thus cleared, Local 254 would abandon all of its efforts to secure a contract, and with its majority unquestionably established would thereafter make no effort to obtain a contract. Probability is also lent to the testimony of Lichtman and Gordon wherein they claimed that Goetz refused to sign a contract with Local 254 because he was going to sign with Local 786, by the fact that he did subsequently sign with Local 786-the negotiations for such contract beginning in March or April. So far as picketing being the only subject of discussion at these conferences is concerned, the record shows that such picketing only occurred several days in the early part of March and ceased on March 6 or 7, before the conferences of March 18, 27, and early May. It seems unlikely that it would be the only sub- ject discussed at the conferences which followed, especially at the final confer- ence in the early part of May, when Goetz, having already entered into negotia- tions with Local 786, had nothing to fear from such picketing. Lichtman and Gordon claimed that at one or two of these conferences Goetz said he was going to permit Cassidy to meet with the employees in the shop. The record shows that on one or two occasions during this period Goetz did permit Cassidy to meet with the employees in the shop Upon the whole record, the undersigned credits the testimony of Lichtman and Gordon with reference to the occurrences of the conference subsequent to the election and finds that on March 5 and at all times thereafter the respondent re- fused to bargain collectively with Local 254. The record shows the following acts of assistance to Local 786. Goetz ad- mitted that in November or December 1941 he permitted Cassidy, representative of Local 786, to meet with the employees in the shop At that time Cassidy attempted to persuade the employees to join Local 786. Again about March 6, 1942, Goetz permitted Cassidy to meet with the employees in the shop.' On this occasion Cassidy also urged the employees to join Local 786. Goetz testified that he did not know what Cassidy (lid while in the shop. However, he knew Cassidy, and knew that he was a representative of Local 786, so that it is a fair inference, and is found, that he knew that Cassidy desired to talk with the employees about joining Local 786. About March 10 Cassidy left a number of application blanks 'Cassidy denied that he secured permission from Goetz to meet with the employees in the shop in March. His recollection of the occasion was admittedly not definite, and contained inconsistencies about this meeting. The undersigned does not credit his deniaL Goetz testified that Cassidy always asked permission to go in the shop. '646 DECISIONS- OF NATIONAL -LABOR RELATIONS BOARD for Local 786 iii the shop with Foreman Victor Peterfesa 2 to be signed by the employees . The application blanks were distributed to the employees in the shop by Peterfesa and one of the office girls All of the employees signed the applica- tion blanks in the shop during working hours and returned them -to Peterfesa, who turned them over to Cassidy. It is clear that the distribution of the appli- cation blanks ' in the shop was done with Goetz 's knowledge and acquiescence, if not at his invitation - In March or April Goetz entered into negotiations for a contract) with Local 786, and such a contract was signed during the early part of June 1942.' The contract provided for the closed-shop, the check-off of dues, and recognition of Local 786 as collective bargaining agent of the employees, and its term was from May 5, 1942, to December 31, 1943 Either the latter part of May or the first part of June, the employees sent two letters to Local 254 stating that they had decided to join Local 786 The last of these letters was composed at a meet-' ing held in the shop at which Verna and Claire, respondent' s manager and office manager, respectively, were present. Claire wrote the letter and had it typed in his office. Nine of the respondent's employees testified that no representative of the re- spondent urged, persuaded, or warned them either to leave Local 254 or to join, Lo- cal 786. They testified that they voluntarily signed membership applications for Local 786 in the shop because Local 786 picketed their locations. However, it is clear that such applications for Local 786 were not signed until after Goetz had refused to bargain with Local-254, had knowingly permitted Cassidy to come into the shop to urge the employees to join,Local 786, and had permitted the application blanks for Local 786 to be distributed in the shop. While it may be true that, no representative of the respondent said anything to the employees about leaving Local 254 and joining Local 786, by permitting Cassidy to come into the shop to urge the employees to join Local 786, at a time when he was refusing to bargain with Local 254, Goetz unmistakably showed the employees which organi- zation he favored. -In almost innumerable cases the Board has held that an employer's permitting union representatives to meet with his employees on his premises during working hours and permitting membership applications to be distributed in his shop during working hours constitute assistance within the pro- scription of the Act There is no reason to hold otherwise in the present case'. The undersigned finds that by permitting Cassidy to hold meetings with his employees in the shop during working hours; by permitting membership applica= tidn• blanks for Local 786 to be distributed to his employees in the shop during working hours ; by assisting the employees in the preparation of what was in effect a letter of resignation from Local 254, and by meeting, negotiating, and signing a contract With Local 786, the respondent has unlawfully assisted Local 786 and interfered with his employees' exercise of their rights guaranteed in Section 7 of the Act. From the foregoing it is clear that while Goetz was refusing to bargain with Local 254, almost unanimously chosen by his employees as their bargaining agent at the election conducted by the Regional Office of the Board, he was at the same time assisting the rival organization, Local 786, to enlist his employees as 2 As will be noted hereinafter, the undersigned does not base his finding of assistance to Local 786 upon the fact that Peterfesa , a foreman , distributed the application blanks in the shop, but upon the fact that Goetz knowingly permitted such distribution The record shows that Peterfesa at different times during the period under consideration was a member of and shop steward for both Local-254 and Local 786 In view of this fact, the undersigned finds that the respondent is chargeable with his act in distributing the cards in the shop only because of Goetz's knowingly permitting such act. 8 The contract bears no date of execution. 1 CAPITOL AUTOMATIC MUSIC CO., INC. 647 members by permitting the meetings in the shop'and the distribution of member- ship blanks, and while refusing to bargain with Local 254, was meeting and -bargaining with its rival, Local 786. In evaluating the testimony of the nine employees respecting the reasons for the change in affiliation, it is to be noted that such change took place after the respondent had rejected and had refused to bargain with Local 254, and after 'the acts of assistance to Local 786 had occurred. Whether such change in affiliation would have taken place without 'the refusal to bargain, and without the assistance to Local 786, is speculative. On the other hand, it is certain that the respondent refused to bargain with Local 254, and that it assisted Local 786. The Board has held, and such holding has been sustained by the courts, that once an employer has refused to bargain with a union, loss of majority by that union is a logical consequence of the refusal, and presents no bar to an order to bargain' So, in the present case the change in affiliation becomes immaterial since it occurred after the refusal to bargain and after the respondent rendered assistance to Local 786. As the Board pointed out in The Bradford Machine Tool case,` the employer is precluded from taking action which results in his selecting the employees' bargaining agent, rather than the employees themselves. That is the situation in the present case. Goetz refused to bargain with the union selected by his employees and he assisted Local 786 before the change in affiliation took place, and then after such change in affiliation took place, he cemented the change by bargaining with Local 786, and signing a contract with that organization. His contract with Local 786, executed while his refusal to bargain with Local 254 was unremedied, and representing the culmination of his assistance to Local 786 cannot be permitted to stand, and he will be directed to bargain with Local 254, the organization selected by his employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occuring 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- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and that it take certain affirmative action in order to effectuate the policies of the Act. It has been found that the respondent has refused to bargain collectively with Local 254 as the exclusive representative of its employees in an appropriate unit. It has also been found that the respondent unlawfully assisted Local 786, and that the contract commencing as of May 5, 1942, between the respondent and Local 786, is invalid. In order to establish the status quo which existed before the respondent committed the enumerated illegal acts, it will be recommended 4 See, inter alia, International Association of Machinists v. National Labor' Relations Board, 61 S. Ct. 83, affirming 110 F. (2d) 29 (App. D. C.) ; N. L. R. B. v. Bradford Dyeing Association, 310 U. S. 318, reversing and remanding 106 F. (2d) 119 (C. C. A. 1) ; N. L. R. B. V. Somerset Shoe Company, 111 F. (2d) 681 (C. C. A. 1) ; John J. Oughton, et at V. N. L. R. B., 118 F. (2d) 494 (C. C. A 3), cert. den. 62 S Ct. 485; N. L. R. B. Y. Whittier Mills Company, 111 F. (2d) 474 (C. C. A 5) ; M. H. Rstzwoller Co. v. N. L. R. B., 114 F. (2d) 432 (C. C A. 7) , Bussman Manufacturing Co v. N. L. R B, 111 F. (2d) 783 (C. C. A. 8) ; Continental Oil Company v. N. L R. B., 113 F. (2d) 473 (C. C. A. 10) ; and N. L. R B v. Highland Park Manufacturing Co, 110 F. (2d) 632 (C. C. A. 4). 44 N. L. R. B. 759, decided October 3, 1942. 648 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD that the respondent, upon request bargain collectively with Local 254, and that the respondent cease and desist from giving effect to its contract with Local 786, ,as well as to any extension, renewal, modification, or supplement thereof. Noth- ing herein, however, shall be deemed to require the respondent to vary those wage, hour, seniority, and other such substantive features of its relations with the employees themselves which the respondent established in performance of the said contract, or any extension, renewal, modification, or supplement thereof. Upon the basis of the above findings of fact, and upon the entire record in the ,case, the undersigned makes the following: CONCLUSIONS OF LAW 1. United Coin Machine Employees Union, Local 254, U. R W. & D. S. E A., affiliated with the Congress of Industrial Organizations, and Local Union 786, International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act. 2. All repairmen, collectors, delivery men, and helpers employed by the respond- ent, exclusive of office and clerical employees, solicitors and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3 United Coin Machine Employees Union, Local 254, U. R W. & D. S. E. A., affiliated with the Congress of Industrial Organizations, was on February 6, 1942, and at all times thereafter has been, the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4 By refusing to bargain collectively with the United Coin Machine Employees Union, Local 254, U. R W. & D. S. E A, affiliated with the Congress of Industrial Organizations, as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and, is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within'the meaning of Section 8 (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. RECOMMENDATIONS - Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Coin Machine Employees Union, Local 254, U. R. W. & D. S. E. A., affiliated with the Congress of Indus- trial Organizations, as the exclusive representative of all repairmen, collectors, delivery men, and helpers employed by the respondent, exclusive of office and clerical employees, solicitors and supervisory employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment ; (b) Giving effect to its contract, commencing as of May 5, 1942, with Local Union 786, International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, and to any extension, renewal, modification, or supplement thereof ; CAPITOL AUTOMATIC MUSIC CO., INC . - 649 (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with United Coin Machine Employees Union, Local 254, U. R. W. & D S. E. A., affiliated with the Congress of Industrial Organizations as the exclusive representative of all repairmen, collectors, delivery men and helpers employed by the respondent, exclusive of office and clerical em- ployees, solicitors and supervisory employees, with respect to rates of pay, wages, hours of employment and other conditions of employment ; (b) Withdraw all recognition from Local Union 786, International Brother- hood of Electrical Workers, affiliated with the American Federation of Labor, as the representative of its employees for the purpose of dealing with the re- spondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment ; (c) Post immediately in conspicuous places in its plant at New York, New York, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a), (b), and (c) of these recommendations; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) and (b)' of these recommendations ; (d) File with the Regional Director for the Second Region (New York, New York) within ten (10) days from the receipt of this Intermediate Report a report in writing setting forth in detail the manner and form in which the respondent has complied with the foregoing recommendations. 'It is further recommended that unless on or before ten ,(10) days from the receipt of this Intermediate Report the respondent notifies said Regional Direc- tor in writing that it will comply with the foregoing recommendations, the Na- tional Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board-Series 2, as -amended, effective October 28, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Wash- ington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. FRANK A. MOURITSEN, Trial Ewanviner. Dated November 30, 1942.