Metal Textile Corp. of Delaware

In the Matter Of METAL TEXTILE 'CORPORATION OF DELAWARE and TEXTILE WORKERS UNION OF AMERICA Case No. C-2446.-Decided February 00, 1943 Jurisdiction : metal products manufacturing industry Unfair Labor Practices Interference, Restraint, and Coercion: dealing directly with employees after notice of union's claim to majority representation ; warnings concerning inability of employees to withstand economic strain of a strike and possibility that respondent would be forced to discontinue operations due to lack of raw materials. Collective Bargaininq: majority established by membership application 'cards- refusal to bargain collectively: refusal to accept card check or enter into consent election to determine majority status of union; negotiating directly with employees ; unilateral granting of wage increases. Remedial Orders : respondent ordered to cease and desist from interference, re- straint, and coercion; customary 8 (5) orders omitted due to respondent's being forced to discontinue operations because-of war priorities in-raw materials. Unit Appropriate for Collective Bargaining : production employees engaged in manufacture of household products, including packers and inspectors, but excluding foremen, foreladies, supervisors, watchmen, truck drivers, stock and shipping clerks, and office and maintenance employees. DECISION AND ORDER On December 4, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that if cease and desist therefrom and take certain affirmative action as set out in the copy of the Intermediate Report attached hereto. Thereafter the respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions. The Union also filed a brief. During the hearing, the Trial Examiner ruled upon various mo- tions and upon objections to the admission of evidence. The Board ,has reviewed the rulings of the Trial Examiner, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. 47 N. L R. B., No. 98 743 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing for the purpose of oral argument was held before the Board on January 26, 1943, at Washington, D. C. The respondent was represented by counsel and presented argument. The Union did not appear. At the conclusion of argu- ment, the respondent filed a supplemental brief, and the Board there- upon granted the Union 10 days within which to file a reply thereto. The Union did not avail itself of this opportunity to file a reply-brief. The Board has considered the Intermediate Report, the respondent's exceptions and brief, the brief of the Union, and the entire -record in the case,' and hereby adopts the findings and conclusions of the Trial Examiner. The remedial recommendations of the Trial Ex- aminer are likewise adopted by the Board except as modified in the order set forth below. In view of the fact that the respondent has been forced -to discontinue the manufacture of household products and to dismiss approximately all of the employees constituting the bargaining unit herein found to be appropriate, and since it appears that there is no likelihood that such operations will be resumed until after the war, if then, we shall not order the respondent to bargain collectively with the Union. 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, Metal Textile Corporation of Delaware, West Orange, New Jersey, and its agents, officers, succes- sors, and assigns shall: 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self-organi- zation, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7,of the Act. 2. Take the following affirmative action which the Board finds .will effectuate the policies of the Act: (a) 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 that the re- spondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 hereof; (b) Notify- the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. I METAL TEXTILE CORPORATION OF DELAWA'R'E 745 INTERMEDIATE REPORT Mr. William T. Little, for the Board. Hopkins, Varburger & Dickson, by Mi. Herman G Varburger, of Hoboken, N. J., for the respondent. Mr Alfred Udoff, of New York City, N. Y., for the Union STATEMENT OF THE CASE Upon a charge duly, filed by the Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director of the Second Region (New York City), issued its complaint dated June 12, 1942, against Metal Textile Corporation of Delaware, West Orange, New Jersey, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce 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. Copies of the com- plaint and notices of hearing were duly served upon the respondent and the Union With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance: (1) that since on or 'about November 25, 1941, the Union represented a majority of the respondent's employees in a unit appropriate for collective bargaining, that on November 25, December 5 and 8, 1941, and thereafter, the Union requested the respondent to bargain with it, and that the respondent refused and refuses to comply with such requests; and (2) that the respondent since on or about November 24, 1941, had bee3i guilty of various acts of interference, restraint, and coercion ; ' - (3) that on or about November 24 and 25, 1941, the employees ceased work concertedly and went on strike, which strike was caused and prolonged by the foregoing unfair labor practices; and (4) that the respondent by these acts interfered with, restrained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act. On June 25, 1942, the respondent filed its answer, which, as amended at the hearing, admitted the interstate character of the respondent's business, but denied generally the commission of any unfair labor practices. Pursuant to notice, a hearing was held at West Orange, New Jersey, on June 25, 1942, and on October 16, 19, 20, 21, and 22, 1942, before Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were represented by counsel, and 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 During the hearing the undersigned, without objection, granted the Board's motion to amend the pleadings to conform to the proof Oral argu- ment, in which the Board and the respondent participated, was had on the record Following the hearing the respondent and the Union submitted briefs. ' Such alleged acts are as follows : that the respondent vilified, disparaged and expressed- disapproval of the Union , interrogated its employees concerning their union affiliation, urged , persuaded , threatened , and warned its employees to refrain from assisting, becoming ,or remaining members of the Union ; urged its employees to form and join a labor organ- ization other than the Union ; and bargained directly and individually with the employees in the appropriate unit 746, DECISIONS O'F. NATIONAL LABOR RELATIONS BOARD Upon the entire record thus made and from ,his observation of the witnesses the undersigned makes, in addition to the above , the following : FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The respondent, a Delaware corporation having its principal office and place of business in West Orange, New Jersey, is engaged in the manufacture, sale and distribution of pot cleaners and air filter units and related products.. The principal material used by the respondent in the course of its business is copper wire. During the year preceding June 15, 1942, the respondent purchased and used in its operations at its New Jersey plant materials valued at approxi- mately $736,184 04, of which approximately 22 percent was shipped to said plant from and through States of the United States other than the State of New Jersey. During the same period, the respondent shipped from said plant finished products valued at approximately $1,509,915 90, of which, approximately 95 per- cent was shipped to and through States of, the United States other than the State of New Jersey. The respondent concedes that it is engaged in interstate commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Textile Workers Union of America is a labor organization, affiliated with the Congress of Industrial Organizations, admitting to membership certain employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The iefisal to baigain collectively; inteifeieace, restiaant, and cceicion 1. Chronology of events Prior to November 24, 1941, there had been no union or union activity at the respondent's plant. On the morning of Monday, November 24, the respondent posted a notice setting forth a new scale of piece rates in which the piece rate for "Makers'-" was cut from 17 cents to 15 cents per gross ' The Makers being dissatisfied with the cut, ceased work and complained to the forelady, Jean Paris, stating that they would not work under the new scale Paris notified Ralph S. Hartwell, assistant secretary of the respondent, who was in general charge of production He caused Paris to send the Makers to his office in groups of five. Hartwell interviewed all of the Makers during the day, finish- ing with the last group about 3 o'clock in the afternoon, and attempted to persuade them that the new sates were fair. He was unable to get them to agree to work at the reduced rates. As a result of the Makers' stoppage of work, the sewers and others ran out of work and were excused by Paris during the forenoon from further work on that day. , The Makers left the plant in the afternoon and advised Paris' that they were not going to return to work the next day. Paris in turn advised Hartwell and Spencer De Mille, who was in charge of production of pot cleaners directly under the supervision of Hartwell. Hartwell and De Mille then ad-' 2 Makers performed certain preliminary operations on pot cleaning utensils after'which sewers and others completed the operation and finished the product for market. METAL TEXTILE CORPORATION OF DELAWARE 747, wised Russell ^B. Kingman, the respondent's president, of the Makers' decision not to return to work on the following clay, November 25' On November 24 an employee of the company telephoned the suite of offices iim which the Union's office was located, and was referred to Louis Horowitz, a member of the State Executive Board of the New Jersey C. I 0 That eve- ning Horowitz and Al Barkan, Sub-Regional Director of the Union, met with a group of approximately 25 employees in West Orange at the home of one of, these employees. All those present signed menibeiship cards in the Union and each took several cards for the purpose of securing the signatures of other employees. On the morning of November 25, Horowitz arrived at the respondent' s plant at about 6:30 a. in., an hour before work started, and helped the Makers sign up other employees as they arrived at the plant. He talked to different groups of employees, answered questions and advised them as to the aims of the Union and of the fact that the Union would seek better working conditions with increased pay, vacations and holidays with pay, and the establishment,of a 40-hour week by the respondent. None of the girl production employees, num- bering approximately 124, entered the plant to go to work A_ picket line was formed under the direction of James Coyle, a union organizer who had been sent to the planf by the State Regional Director of the C. I: O. with instructions to report to Horowitz. It is undisputed that the picket line was an orderly one and none of the officials, supervisory employees, or production employees were molested or prevented from going into the plant. During the early forenoon of November 25, Frank Rich, a long-time employee of the respondent, advised his sister-in-law, Orpha Drudy, a Maker, that Kingman had accused Rich of instigating the strike. Drudy and a number of other girl employees called on Kingman and assured him that Rich was not responsible for such strike. During the conference between Kingman, Drudy and her com- mittee, Kingman asked the committee if they had signed with the Union and they advised him that they had' Kingman asked the committee what the strike was about and was advised it was because of the cut in piece rates. Kingman then asked the girls if they would return to work if he restored the cut, but ,was advised that "ten girls could not answer for a hundred." The committee reported to the girls on the picket line what Kingman had stated, to which, according to Drudy, they replied, "No, we are out ; we will stay out." A total of 108 application cards had been signed by the employees and delivered to Horowitz by 11:00 a. in. Horowitz, Coyle and Doris Blake Perry,5 an employee, went to the respond- ent's office and asked for a conference with Kingman Kingman met with them and it is undisputed that the committee, with Horowitz and Coyle doing the talking, advised Kingninn that a majority of the employees had signed cards for the Union and that they wanted to bargain with the respondent with respect to wages, hours and working conditions Kingman stated in substance that he did not know Horowitz and Coyle or that the employees had signed with the Union. The committee then advised Kingman that they would be pleased to submit the cards which Horowitz stated he had in his possession, to any ' This finding is based on De Mille's testimony. Hartwell and Kingman testified that they knew nothing of the threatened strike on November 24. ^rhe undersigned accepts the testimony of De Mille as the correct version of this incident. 9 Kingman , however, denied that the Union was mentioned on this occasion He ad- mitted much of this conversation Drudy, while called as a witness by the Board, was an unfriendly one Under all the circumstances , the undersigned credits Driidy's - testimony in this connection ' 6 Referred to in the record as "Texas" 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responsible third pai ty The conference broke up without Kingman agreeing to a card check or agreeing to submit the matter to any third party. The Union's representatives then stated that they would have to refer the matter to the National Labor Relations Board, to which Kingman replied that what was all right with the N L R B was all right with him. Shortly 'after noon on November 25, Rich and Louis De Angelis 6 advised the girls on the picket line that Kingman wanted to talk to them in the shipping room. Coyle and Julien Demeyer, also a union organizer, advised the em- ployees not to attend the meeting unless they were permitted to be present and speak for the employees This advice was conveyed to Rich, who later returned and advised the employees that the union representatives might also attend the meeting. All of the employees then at the plant went to the shipping room, accompanied by Coyle and Demeyer After they arrived in the shipping room Kingman stated that he did not care to speak to his employees in the presence of strangers, whereupon Coyle and Demeyer left the meeting Kingman then addressed the employees and stated in substance that he was surprised that they had taken the action they had without first taking the matter up with him ; that they had worked for him forcyears and lie treated them as one happy family Kingman then suggested that they appoint a committee of their own which he stated would be better than, an outside organization. He then asked the employees what they wanted and was advised that they wanted the cuts restored, together with vacations with pay and six or seven holidays with pay. The sewers wanted an additional 11/2 cents on the gross for work performed by them Kingman then stated that he would take the matter under advisement. Later lie sent word to the employees that he would meet their demands. This was reported to,Coyle and Demeyer, who suggested that Kingman be required to put his agreement in writing. This suggestion was relayed to Kingman and as a result he prepared, signed and posted in the shipping room a notice stating that the rate for sewing was 287/ cents per gross and that for making, 17 cents per gross. The notice also provided for a week's vacation with pay, national holidays with pay, and time and one-half for overtime in excess of 40 hours per week. It also provided that employees would lose no pay for the time-lost on November 24 and 25 The notice above referred to was later modified on that same day by a further notice which was posted changing the sewers' rates from 281/2 to 30 cents per gross, with the provision that such rates would be granted if the employees returned to work, the next morning Horowitz left the plant premises about 11 a. m Novemper 25, turning the union matters and membership cards over to Coyle and Demeyer. Before leav- ing, however, he announced to a group of about fifty of the employees that the Union would hold a meeting at a certain hall in West Orange at 8 o'clock that night After' Kmgman's notice was posted in the shipping room, the employees who were outside the plant went to the shipping room in groups, read the notice and, in some instances, remained to discuss it. Forelady Paris testified that some of the employees who were satisfied with the new working conditions provided for in the notice insisted that a meeting of all the employees be held for the purpose of voting whether to return to work Paris went to De Mille and asked his permission to hold a meeting in the plant that night. De Mille and Hartwell took the request up with Kingman and permission was granted on the condition that no union matters be discussed. Paris and her 6 De Angelis is a long tune emplo3 ee of the respondent Pr-or to 1938 he had the position of foreman Subsequent to 1938 he was employed in a non-supervisory capacity and retained in employment because of long service _ Ile was between 60 and 70 years of age. i, METAL TEXTILE CORPORATION OF DELAWARE 749 assistant forelady contacted the employees, calling those who had telephones and sending word to others who did not have telephones, advising them of the night meeting at the shop. According to Paris all the female employees attended the shop meeting . - Employee Jane Jones went to the meeting called by the Union and found male employees Frankie De Mayo and Mattie Page outside the ball which had been procured by the Union for its meeting. The latter asked her if she was not going to the meeting at the plant. Since no one else appeared at the Union meeting, Jones attended the plant meeting. Orpha Drudy, sister-in-law of Frank Rich, discussed the respondent's offer of new rates, pay for holidays and vacations with those assembled A list of employees was procured from the respondent's office and the roll was called of the employees by the girl who normally had charge of the time cards Drudy explained the different rates proposed by the respondent and Paris was called upon to verify Drudy's statement from time to time, which she did. During the meeting it developed that only the sewers and Makers were receiving an increase in wages. Paris assured the others that they could take the matter up the next day with Kingman and it would be satisfactorily settled. After the fore- going discussion, all of the employees assembled agreed to abandon the strike and return to work on the morning of November 26, which they did. Immediately tollownig the shop meeting, Paris reported the dissatisfaction of those employees who did- not receive an increase to De Mille, who had re- mained on another floor of the plant, and the latter conveyed the information to Kingman on the morning of November.26. Kingman, after having the employees called together, then addressed them and proposed, inter abia, that the employees forego a vacation with pay in consideration of his granting an -increase to those who had not received 'one under his proposition of the preceding day. During this discussion he stated, "the union can get you out (on strike) and you can stay out for two months. We would not lose any money." ° After considerable discussion, the employees agreed that they would forego the vacation with pay in order that those not having received an increase would receive one. On December 2 and at the request of Maxwell Feller, an agent of the Board, Kingman, Hartwell, De Mille and Barclay Kingman attended a conference at the Board's Regional Office in New York. Union representatives were also present in the building, but Kingman refused to meet in the same room with them. At this meeting Feller suggested two methods for determining the Union's majority. One was to check the cards against a list of the employees and the second was by means of a consent election. Kingman refused to adopt either of these suggestions. The Union held a meeting on December 4 at the Polish Hall in West Orange. Applications for membership were received from four additional employees At this meeting Orpha Drudy was elected chairlady for the plant and other girls were elected as representatives of their different departments. It was decided at such meeting that a committee of the Union should call on the re- spondent with the request that it negotiate with the Union and if the respondent refused to negotiate,that a strike be called. On December 5 Coyle, Demeyer and Rose Kelly, Union representatives, called on the respondent and conferred with Kingman, Hartwell, and De Mille in the 7This statement is taken from transcribed 'notes of Kingman's address, which were made by the respondent's stenographer Kingman denied having made the statement in question and testified that the stenograpl-er's notes were incorrect. Under all the circumstances and notwithstanding that the notes were apparently incomplete, the undersigned credits the notes to the extent that they were transcribed. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presence of Barclay Kingman, son of the respondent's president. The Union representatives suggested that the cards be submitted to a mediation board, for a checking and, as an alternative, that a consent election be held King- man refused to agree to either of these methods of determining-the majority. As the meeting was about to break up, the Union representatives advised the respondent's officials that they were authorized and required to call a strike if an agreement were not reached, whereupon the conference was resumed and, after further discussion, Kingman then advised them that he wished to call up an associate of his in Connecticut who had more experience with labor relations than he had and at his suggestion the meeting adjourned until December 8. On December 8, following the Japanese attack upon Pearl Harbor, Kingman called the employees together and addressed them and closed with the sugges- tion that they should cease fighting among themselves and that they had better continue working on, since he did not know how long the plant could remain open on account of the shortage of copper and further'stated that on account of the shortage of copper the plant would close, sooner or later, in any event. On December 8, 1941, at about 3: 30 p in, Coyle, Demeyer and Rose Kelly as representatives of the Union called on Kingman pursuant to the agreed adjournment made on December 5. Kingman stated at the outset that he had called an associate, a shill owner, who had had experience with unions and was advised by such associate that the latter's experience with the C I. 0 had been satisfactory. Kingman then said to let the N. L R B put the case through as it saw fit. He stated that the time lost in so doing was not important, and added "So let affair take its course" Kingman was then asked by Coyle if he would agree to a consent election. Kingman refused Demeyer then asked him if he would let the Board check the cards or hold a consent election and he again refused. Demeyer then suggested that the Orange Mediation Board be 'permitted to check the cards. -Kingman again refused. Kingman was then asked ". . . Have we cocerced your employees, do you feel?" to which King- man replied "I don't think so." 8 The Union representatives made every effort to get Kingman to agree to negotiate, to have the cards checked, or to the holding of a consent election, all without avail. On December 9 the New Jersey State Board of Mediation requested Kingman ,to attend a meeting with the representatives of the Union, the United States Conciliation Service, and the Mediation Board of Orange and Maplewood, New Jersey, at the office of the State Board. On the same day Kingman replied stating that, "since this matter comes within the jurisdiction of said Board (N. L. R. B.) we respectfully feel that it would be inappropriate and inad- visable to appear and discuss this matter before your esteemed Board." On December 10, the New Jersey State Board of Mediation wrote Kingman and the Union jointly, and recited the fact that all parties appeared as there- tofore requested by the State Board, except the respondent. Such letter ad- vised the parties that there would be another "hearing" held at the offices of the National Labor Relations Board in New York on December 12, and the State Board recommended that the respondent agree to a consent election in the matter. On December 12, Kingman and other of respondent' s officials went to the Board's New York office and met with Feller who advised them that he had received the recommendations from the New Jersey State Board of Mediation. 'He again attempted to settle the matter but without success. 8 The above question and answers are taken from the memorandum made by Barclay Kingman at or about the time of the meeting After the notes had been typed Kingman, Sr. attempted to modify his answer by adding the words "I don't know." ' The undersigned is of the opinion and finds that the notice as transcribed by Barclay, Jr. correctly stated that portion of the conversation and that it did not Include the words , "I don't know METAL TEXTILE CORPORATION OF DELAWARE 751 The undersigned finds that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, by dealing directly with its employees on November 25 and succeeding days, after' having been informed of the Union's claim that it represented a majority of the employees and without making any attempt to ascertain the truth of this claim ; and by the various statements to the respondent's em- ployees on November 26, 1941, and succeeding days, which were designed to discourage the employees' membership in the Union. B. The refusal to bargain collectively The complaint alleges that the respondent on or about November 25, 1941, and on or about December 5 and 8, 1941, refused to bargain witb the Union as the exclusive representative of the respondents' production employees 1. The appropriate unit In November 1941 the respondent employed approximately 135 production employees in connection with the manufacturing of household products in its 'building at 4-6 Central Avenue, West Orange, New Jersey, exclusive of super- visory and clerical employees, and certain other classifications mentioned below. The respondent also employed other employees in the manufacture of other articles in buildings near 4-6 Central Avenue. These latter employees are not involved in the instant case. The complaint, as amended, alleges that all the 'production employees of, the respondent engaged in the manufacture of household products in the building at 4-6 Central Avenue, West Orange, including specifically, but not exclusively, packers and instructors and, excluding foremen, foreladies, supervisors, watch- men, truck drivers, stock and shipping clerks and office and maintenance em- ployees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (c) of the Act. The respondent in its answer, as amended, admits that the employees as above described constitute an appro- priate unit. The undersigned finds that all production employees of the respondent engaged in the manufacture of household products in the building at 4-6 Central Avenue, West Orange, including specifically, but not exclusively, packers and instructors and excluding foremen, foreladies, supervisors, watchmen, truck drivers, stock and shipping clerks and office and maintenance employees, at all times material herein constituted, and they now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other conditions of employment, and that said unit insures to the employees of the respondent the full benefit of their right to self-organization and to col- lective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit On November 25, 1941, there were 135 production employees of the respondent engaged in the manufacture of household products in its building at 4-6 Central Avenue, West Orange, which has been found herein to constitute an appro- priate unit. , At the hearing 112 Union membership cards were introduced in evidence. The respondent objected to the admission of these cards on the ground that no proof had been made as to the genuineness of the signatures thereon. Horowitz testi- fied that 108 of these cards were turned over to him during the morning of 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 25 and were signed either that morning or on the previous evening. He further testified that a substantial number of these cards were signed in his presence and that the remainder were given to him by employees to whom he had given the cards to solicit signatures thereon. No suggestion was made at the hearing that the Union or its representatives .had forged the signatures of any of the respondent's employees to the member- ship cards. The respondent introduced evidence that one of the cards which was apparently signed by a 17-year old employee, Pauline Fasulo, had in fact been signed either by Fasulo's mother, Florence Fasulo, or by one of the other employees in the latter's presence 9 The undersigned is not persuaded, however, by, the suggestions that this testimony casts doubt upon the validity of the other cards in evidence.10 In computing the number of employees who, at the time of the alleged refusal to bargain, had designated the Union as their repre- sentative, Pauline Fasulo's card is disregarded. Notwithstanding the respondent's contention that it doubted the authenticity of the cards, respondent made no effort with the exception Doted above to demonstrate in what respect these cards were not genuine. The cards bore the addresses of the signers The respondent had in its possession the ad- dresses of all its employees. Furthermore it doubtless had cancelled checks or other documents bearing the signatures of the employees which it could ,have produced at the hearing and compared with the signatures on the cards if it had desired to disprove the authenticity of the cards. Under the circumstances the undersigned finds that the respondent' s objec- tions to the authenticity of the union application cards are groundless.ll At the hearing there was introduced in evidence a pay-roll list of the employees in the appropriate unit for the week beginning November 24, 1941. Of the 112 caid's in evidence, 104 appear to be original signatures, and to have been signed by employees in the appropriate unit's Of these,'100 were among those signed on November 24 and November 25, while four were signed on December 4. Thus on November 25 the Union had been designated by 100 of the 135 employees in the appropriate unit and by December 4, by 104. The undersigned finds that on November 25, 1941, and at all times material thereafter,' the Union was and now is, the duly designated representative of a majority of the employees in the aforesaid appiopriate unit, and that, by virtue of Section 9 (a) of the Act, the Union at all such times was and now is the exclusive representative of all its employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employ- ment or other conditions of employment. 8 The testimony of Florence Fasulo on this point is ambiguous. 10 See Matter of Sanco Piece Dye Works, Inc, William F. Larkin and Federation of -Dyers, Finishers, Printers of Bleachers of America, 38 N. L R. B. 690 11 See Matter of Richfield Oil Corporation and Marine Engineers Beneficial Association No. 78, 7 N L. R. B., 639. 12 In counting the cards the undersigned has disregarded, in addition to Fasulo's card, three cards with printed signatures and four cards containing illegible signatures 13 The respondent contends that even if the employees designated the Union as their collective bargaining agent on November 24 and 25, they revoked this authority on November 25 by bargaining directly with the respondent There is no merit to this contention in view of the fact as shown by record that after the respondent agreed orally to meet the -demands of the employees, the latter reported this back to the union organizers who advised the employees to insist that the respondent put its offer in writing Furthermore at the ,Union meeting of December 4 the employees who were present selected a bargaining com- mittee and authorized the calling of a strike in the event the respondent refused to negotiate with such committee . The record contains no evidence that any employees sought to withdraw from-the Union up to the d,ite of the bearing 0 METAL TEXTILE CORPORATION OF DELAWARE 753 3 The refusal to bargain As found above, a majority of the employees in an appropriate unit had selected the Union as their bargaining agent before noon on November 25, 1941 and immediately went on strike. During the forenoon of that day after being advised that a majority of its employees had selected the Union as their bargaining agent, the respondent was requested to recognize and bargain with the Union. The respondent was asked to agree that a check of the Union cards be made against its payroll by some responsible third party and was also informed that there were alternatives to a card check, by the way of a consent election or mediation. The respondent questioned the fact that the Union represented a majority of its employees, but refused to take any steps toward establishing whether or not this claim was true. When the Union representatives stated at the conclusion of their conversation that they would have to refer the matter to the N L R B., the respondent stated that, what was all right %-ith the N I,. R B was all right with it Instead of waiting, however, for such a determination to be made, the respondent proceeded immediately to meet directly with its employees after first demanding the exclusion of the Union's representatives from this meeting, and to grant the employees' demands. When it appeared later in the clay that all the employees had not signified their intention to abandon the strike, the respondent held a further meeting at its plant that night under its forelady's supervision, at which the employees voted to return to work the following day. On' the following day, the respondent continued to bargain directly with its employees. At subsequent conferences with the Union's representative on December 5'and 8, the respondent maintained its position that it was unwilling to agree to a consent election or a cross-check to determine whether the Union represented a majority. Respondent gave no reasons for this refusal other than that the Board could put the case through as it saw fit, and that the time lost in so doing was not important. It is the respondent's contention that its "willingness" to have the matter determined by the Board establishes its innocence of having refused to bargain collectively within the meaning of the Act. The Board has held that it is a bargaining representative's duty, when an employer in good faith questions its majority status, to offer, and it is the em- ployers duty to accept, some reasonable method for ascertaining the truth of the representatives claim. Thus in N. L R. B. v New Era Die Co, Iuc 14 Wherein the situation was analogous to the one herein, the court in sustaining the Board, said in part: But Cederholm cannot be said to have refused the requested proof. He sug- gested that the respondent inquire of the Philadelphia office of the National Labor Relations Board where the signed cards of the employees were on file but the respondent made no such inquiry. Cederholm did refuse to show Mosher the signed cards.' To have done so would have been to deprive the employees of their secrecy of choice which the Act is designed to secure. The undeniable fact is that a majority of the employees had authorized the union to bargain collectively for them and, the respondent took no reasonable steps to' ascertain that fact. The Board was "convinced that the respondent never intended to bargain collec- tively with the Union, and merely utilized an asserted doubt regarding the Union's status as majority representative to evade bona fide collective bargaining with the Union." The evidence in the case justified that conclusion. So, in the i+118 F. ( 2d) 500 and see Matter of The Serrick Corporation, 8 N L R B_ 621, enf'rl in International Ass'n df Machinists, Tool and Die Makers Lodge No 35 v. N L R B, 110 F. (2d), affirmed by the Supreme Court, 61 S. Ct 83. 513024-43-vol 47-48 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instant case the Union not only offered to submit its application cards to a check, it also offered to have a consent election held under the auspices of the Board and it was willing, to submit the matter to the mediation of the New Jersey State Board of Mediation or to the local mediation board of the locality wherein the respondent's plant was located. To the undersigned it appears that the respondent's statements in this regard taken in connection' with all its acts, demonstrate that the respondent was willing to do nothing to satisfy-itself whether or not the Union represented a majority, and that it never intended, in fact, to bargain with the Union. Its immediate reaction to the Union's request for bargaining was to go over the heads of the Union representatives and deal directly, with the employees, and at the same time, to undermine the prestige of the Union by making derogatory statements concerning it. The Board has held that, under such circumstances, an em- ployer's refusal to cooperate with a union in an inquiry concerning the accurate- ness of the Union's claim of majority representation is tantamount to a refusal to bargain collectively within the meaning of the Act's In view of the foregoing and upon the entire record herein the undersigned finds that, the respondent on November 25, 1941, and all times thereafter refrised to bargain collectively with the Union as the exclusive representative of its em- ployees in an appropriate unit and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act After the-United States entered the War the respondent was unable to procure further supplies of copper wire and was forced to discontinue its manufacture of household products on or about February 22, 1942. , IV. THE EFFEOT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The undersigned finds that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed 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 obstructing commerce and the free flow of commerce.' I V THE REMEDY Having found that the respondent has engaged in unfair labor practices, it is recommended that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act, and to restore as nearly as possible the condition which existed prior to the commission of the unfair labor practices. Since it has been found that the respondent refused to bargain collectively with the Union, an order requiring the respondent to bargain collectively, upon request, with the Union, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment, is necessary to effectuate the policies of the Act. While it is true that, due to the intervention of war, the respondent has been de- prived of raw materials necessary in the manufacture of its products and its 16 See Matter of Clinton E Hobbs Company and District 38, Lodge 264, International Association of Machinists (A F. of L ), 411 N L R B, 537; Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No 1719, 7 N L. R. B., 714, -Matter of'McNeeley & Price Company and National Leather Worker Association, Local No . 80 of the C 1. 0, 6 N L N . B , 800 METAL TEXTILE CORPORATION OF DELAWARE 755 plant is not now producing household utensils, the fact remains that it did refuse to bargain at a tine when it had ample raw materials, and the presumption is that it will reopen its plant in due course 16 In view of the fact that the company is not now engaged in the manufacture of household products and that the employees who previously worked in the manu facture of these products are with a few exceptions not at the plant, it will be recommended below that in addition to the posting of notices, the respondent shall mail notice to each of the employees in the appropriate unit and on the payroll on November 24, 1941, since such action will tend to effectuate the policies of the Act. 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. Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization, within the meaning of Section 2 (5) of the Act 2. By interfering with, restraining, and coercing its employees in the exercise 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. 3. The respondent's production employees' engaged in the manufacture of household products at the building at 4-6 Central Avenue, West Orange, New Jersey, including specifically, but not exclusively, packers and instructors-and excluding foremen, foreladies, supervisors, watchmen, truck drivers, stock and shipping clerks,'and office and maintenance employees, constitute a unit appro- priate for, the purposes of collective bargaining, within the meaning of Section O (b) of the Act. 4. Textile Workers Union of America, affiliated with the Congress of Indus- trial Organizations, was on November 25, 1941, and at all times thereafter the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing on November 25, 1941, and at all times thereafter, to bargain collectively with Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all of its em- ployees in such unit, the respondent has engaged and is engaging in ,unfair labor practices, within the meaning of Section 8 (5) 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 basisof the above findings of fact and conclusions of law the under- signed recommends that the respondent, Metal Textile Corporation of Delaware, West Orange, New Jersey, and its agents, officers, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, as the exclusive repre- sentative of all the production employees of the respondent engaged in the manu- facture of household products at the building at 4-6 Central Avenue, West Orange, New Jersey, including specifically, but not exclusively, packers and instructors 16 It is not contemplated' that the parties will be able to baigain to the same extent that they could if the plant was now in operation. 756 DECISIONS OF NATIONAL LABOR RELATI ONS BOARD and excluding foremen, foreladies , supervisors, watchmen , truck drivers, stock and shipping clerks, and office and maintenance employees , in respect to rates of pay, wages, hours of employment; - (b) In any other manner interfering with, restraining, or coercing its emp_oyees in the exercise of the right to self-organization , to form, join, or assist labor organizations to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Upon request bargain collectively with Textile Workers Union of America, affiliated with the Congress of Industrial Organizations , as the exclusive repre- sentative of all the respondent's employees engaged in the manufacture of house- hold products at the building at 4-6 Central Avenue, West Orange , New Jersey, including specifically , but not exclusively , packers and instructors and excluding foremen, foreladies , supervisors , watchmen , truck drivers , stock and shipping clerks, and office and maintenance employees in respect to rates of pay, wages, hours of employment and other conditions of employment. (b) Post immediately in conspicuous places in its plant at West Orange, New Jersey, 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) and ( b) of these recommendations; (2) that the respondent ,will take the affirmative action set forth in paragraph 2 (a) and ( b) of these recommendations ; and (3 ) that the respondent 's employees are free to become or remain members of Textile -Workers Union of America, affiliated with the Con- gress of Industrial Organizations , and that the respondent will not discriminate against any employees because of membership or activity in that organization, and in addition to such posting that the respondent mail a copy of such notice to each employee in such unit , addressed to the last known address of'such employee (c) Notify the Regional Director for the 'Second Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the respondent has taken to comply therewith. It is further recommended that unless or on before ten (10 ) days from the date of receipt of this Intermediate Report, the respondent notify -said Regional Director in writing that it will comply with the foregoing recommendations, that the National 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. Dated December 4, 1942. PETER F. WARD, Trial Examiner.