Standard Wholesale Co.

In the Matter of STANDARD WHOLESALE COMPANY and DISTILLERY, RECTIFYING AND WINE WORKERS INTERNATIONAL UNION OF AMERICA, LOCAL No. 8 (A. F. L.) / ' Case No. 0-2429.-Decided February. 23, 1943 Jurisdiction : grocery, liquor, wine, and beer retail industry. Unfair Labor Practices - Interference, Restrdint, and Coercion: inducing employees not to retain union membership by increasing established commissions paid employees ;' solicitation of employees' resignations from union. Collective Bargaining: majority established by signed authorizations ; loss of majority attributable to employer's unfair labor practices, immaterial-re- fusal to bargain by : engaging in conduct calculated to destroy union's majority representation and by soliciting resignations from union. Remedial Orders : cease and desist unfair labor practices; upon request, to bargain collectively. Unit Appropriate for Collective Bargaining : all salesmen of one of respondent's offices, exclusive of executive, supervisory, and office employees. DECISION AND ORDER On November 24, 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 it cease and desist therefrom and take certain affirmative action, as set out in the copy of the Intermediate Report attached- hereto: Thereafter tho respondent filed exceptions to' the Intermediate Report and a brief in support of the exceptions. By agreement of all the parties, the hearing scheduled for oral argument' before the Board in Washington, D. C., was canceled and all parties were granted permission to file further briefs. Thereafter the Union filed a brief. The Board hash considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in the case, -and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. The respondent points to, the fact that Nass' offer to permit with- drawal of 50, and later, 60 percent of the salesmen's outstanding bal- ances was made to the employees, at the meeting of June 6, 1942, after they had voiced their objection to the respondent's original proposal, and was merely an effort to meet the employees' demands and not an attempt to discourage union membership. However, in view of Nass', 47 N. L. R. B, No. 116. 920 J STANDARD WHOLESALE COMPANY 921 subsequent solicitations for resignations from the Union and the fact. that the respondent by unilateral action put this proposal into effect despite the protestation of the employees that they would accept noth- ing, less than 100 percent on the balances, we find that the respondent's action in this respect was intended to and in fact did discourage the salesmen from retaining membership in the Union. The Trial Examiner did not credit Hatch's testimony that he and' two other employees decided to resign from the Union on June 5. We agree with this conclusion for the reasons set forth in the Inter- mediate Report and for the further reason that none of these em- ployees repudiated Levin's authority, as steward of the Union,' to represent them on June 6, 1942. For the same reasons, we do not, credit Schupack's testimony that he also decided to withdraw from the Union between June 4 and 6, 1942; 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, Standard Wholesale Com- pany, Providence, Rhode Island, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing'to bargain collectively with Distillery, Rectifying and Wine Workers International Union of America, Local No. 8 (A. F. L.), as the' exclusive representative of all its salesmen em- ployed at its Providence office, excluding executives, supervisory, and office employees; (b) 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 activi- ties for the purpose 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 Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Distillery, Rectifying and Wine Workers International Union of America, Local No. 8 (N. F. L.), as the exclusive representative of all its salesmen. employed at its Providence office, excluding executives, supervisory, and office employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Post immediately in conspicuous- places throughout its office in Providence, Rhode Island, 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 I 922 DECISIONS OF NATIONAL LABOR'iRYLATIONS7 BOARD conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) 'of this Order; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the First Region iii writing, within ten (10) days from the date of this Order, what steps the respondent- has taken to comply herewith. INTERMEDIATE REPORT Mr. Thomas H Ramsey and Mr Samuel G. Zack, for the Board. Mr. 'Herman J. Aisenberg and Hinckley, Allen, Tillinghast & Wheeler, by Mr. Isadore Paisner, of Providence, R. I , for the respondent. Mr' Louis J. Blender, of Boston, Mass, for the Union. STATEMENT OF THE CASE 1 Upon a charge duly filed on June 16, 1942, by Distillery, Rectifying and Wine Workers International Union of America, Local No 8 (A F L ), herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the First Region (Boston, Massachusetts), issued its com- plaint dated October 19, 1942, against Standard Wholesale'Company, 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 complaint and notice of hearing were duly served upon the respondent and the Union - - With respect to the unfair labor practices the complaint alleged in substance that the respondent: (1) in or about the month of June 1942 requested and solicited its employees to sign letters of resignation from the Union, and to return, to the Union their membership books and buttons; and (2) on or about June 13, 1942, and thereafter refused to bargain collectively with the Union as the exclusive bargaining representative of all salesmen of the respondent, exclusive, of executive, supervisory, and office employees, employed at respondent's Provi- dence office, alleged to constitute an appropriate unit. The complaint also alleged that on or about June 2, 1942, a majority of the salesmen in the above- described unit had designated the Union as their exclusive bargaining repre- sentative. On October 29, 1942, the respondent filedNts answer admitting certain allega- tions of the complaint as to the nature of its business, but denying (1) jurisdic- tion of the Board on the ground that it is not engaged in interstate commerce ; (2) the appropriateness of the unit alleged in the complaint; and (3) that it had committed any unfair labor practices. Pursuant to notice, a hearing was held at Providence, Rhode Island, on Novem- ber 2, 3, and 4, 1942, before John H. Eadie, the undersigned Trial Examiner duly designated-by the Acting Chief Trial Examiner. The Board, the respondent, and, the Union were represented by counsel. All of the parties 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 close of the case, the attorney for the Board moved to conform the pleadings to the proof in regard to formal variances The motion was granted During the hearing the respondent made three motions to dismiss the com- plaint on jurisdictional grounds and in addition moved to dismiss at the close of the case for lack of proof. These motions were denied Prior to the hearing, on October 31, 1942, the respondent filed with the Regional Director for the First 1' STANDARD WHOLESALE COMPANY - 923 Region a written 'motion for an election, and renewed the -motion during the hearing. This motion was also denied At the close of the hearing the attorneys for the Board, the respondent, and the Union presented oral argument before the undersigned None of the parties filed briefs although given an opportunity to do so. Upon the entire record in the case and from his observation of the witnesses the undersigned makes the following : I FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Standard Wholesale Company is a Rhode Island corporation having its principal office and place of business at Newport, Rhode Island and another office at Provi- dence, Rhode Island. Respondent is engaged in the purchasing and selling of food commodities of all kinds, beer, liquor, and wine In connection with this business, respondent owns or operates warehouses at Newport and Providence, a wine bottling plant at Providence, three retail grocery supermarkets in Rhode Island, a wholesale grocery plant at Newport, andlten automobile trucks • At the bottling plant 98 percent of all wines purchased and sold are bottled During the year, 1941 respondent purchased liquor in the approximate amount of $550,000, 100 percent of which came into the State of Rhode Island from outside the State of Rhode Island ; wines in the approximate amount of $250,000, 100 percent of which came into the State of Rhode Island from outside the State of Rhode Island in bulk or in tank cars, groceries and other goods for its super- markets in the approximate amount of $325,000, the majority of which came into the State of Rhode Island from outside the State of Rhode' Island, beer in the approximate amount of $250,000, 5 percent of which came into the State of Rhode Island from outside the State of Rhode Island. Respondent's sales, in its over- all business amounted to approximately $2,000,000 as follows : $1,000,000 from wine and liquor, $400,000 from supermarkets, $300,000 from beer, and $300,000 from wholesale groceries. One hundred percent of all the sales of respondent are made in Rhode Island, and under the laws of the State of Rhode Island respondent is prohibited from selling liquor, wines, oi• beer outside the State. The nature of respondent's business has remained substantially the same in all respects, pro- portionally, during the year 1942. With the exception of Guinness' Stout and Bass' Ale, the nine salesmen at the Providence office sell liquor and wine only These salesmen, along with two salesmen working out of the Newport office, are under, the supervision of Mr. Louis Nass, a sales manager and vice president of respondent. Nass makes all purchases of and sets the selling prices on liquor, wine, and beer. In accordance with the laws of the State of Rhode Island, all orders for alcoholic beverages to be purchased from outside the State must be filed in triplicate by the importer with the Division of Intoxicating Beverages This Division forwards a copy of the order to the vendor and returns one approved copy to the importer. The cost price to the importer is set by the distiller or vendor The beverages are delivered to the warehouse of the Division of Intoxicating Beverages-but are consigned 'to the importer, care. of the Division of Intoxicating Beverages 1 The vendor sends the invoice to the importer and i Nass testified that the beverages are consigned to the Division of Intoxicating Beverages, care of the Standard Wholesale Company. However, instructions on the back of order forms of the Division of Intoxicating Beverages stale that,all shipments must be consigned to the importer , care of the Division . The undersigned believes that all shipments are consigned. in accordance with these instructions and so finds. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' a copy to the Division. The importer makes payment directly to the vendor. The respondent contends that it is not engaged in interstate commerce within the meaning of the Act. The undersigned finds no merit in this contention .2 II. THE LABOR ORGANIZATION INVOLVED Distillery, Rectifying and Wine Workers International Union of America, Local No.,8 (A. F: L.) is a labor organization which admits to membership employees of respondent. III. THE UNFAIR LABOR PRACTICES _ A Background Prior to June 6, 1942, the salesmen at respondent 's Providence office were paid commissions on sales. In the last week of April or the first week of May, respondent had announced that within a short space of time a change would be made whereby commissions would be based upon collections. This new method of paying commissions meant freezing of the outstanding balances of the salesmen with the respondent: Seven of the salesmen held a meeting on May 27, 1942, to consider union organization and a committee consisting of Joseph Rosenfield , Louis Levin, and William Catlow was appointed to inquire into the proper way of associating with, an existing union. , Six of the salesmen present at the meeting signed a resolu- tion signifying their intention to bargain collectively with respondent and ap- pointing the committee . The seventh salesman present, Joseph L. Shepard, did not sign the resolution since he was not a commission salesman., In the latter part of May Mr. Louis J. Blender, executive vice president of the Union, was advised , that the salesmen at the Providence office of respondent desired organization and wished . to have a meeting with hun on June 2, 11942, at the Narragansett Hotel in Providence . Blender confirmed these arrangements by sending a letter to Levin The meeting was held as scheduled on the night of June 2, and all nine salesmen employed at,the Providence office were present. At the meeting Blender explained the *purposes of the Union , following which the salesmen signed applications' for membership and cards authorizing the Union to represent them for the purpose of collective bargaining. All nine, salesmen paid an initiation fee of $5. A proposed contract was then discussed. The salesmen requested Blender to put the contract in writing and return to, Providence for another meeting on June 4. On the following day, Juno 3, Blender sent a letter by registered mail to the respondent, stating that the Union repre- sented a majority of the salesmen and requesting a conference. As scheduled, Blender again met with the salesmen at the Narragansett Hotel on the night of June 4. All nine salesmen were -present at this meeting. The salesmen were given official membership books and union buttons. They all paid their first month's dues of $2 . Blender then read the proposed contract which he had been instructed -to prepare by the salesmen at the June 2 meet- ing The contract was discussed paragraph by paragraph and' suggestions were made by the salesmen for additional modification . At this meeting the salesmen instructed Blender to send a letter to respondent requesting that no change in' the method of dealing with the salesmen be made pending the negotiation of an agreement and reminding respondent of its indebtedness on previously earned 2 See N. L R B v. Henry Levaur, Ind, et al, 115 F. 2d 105 (C. C. A. 1 ). N. L. R. B. v. Schmidt Baking Co ., Inc., 122 F. 2d 162 (C. C A. 4). STANDARD WHOLESALIl COMPANY' 925- commissions to the salesmen which they wished to have paid. Such a letter was sent to respondent by Blender on June 5. At the June 4 meeting Levin was nominated and elected shop steward and none of the salesmen opposed Levin for this office. i On June 10 Blender received identical resignations from the Union, dated June 8, 1942, enclosing union membership books and buttons from seven of the nine salesmen.' B. Interference, restraint, and coercion It was customary to have a meeting of the salesmen every Saturday morning at the Providence office. Such a meeting was held on Saturday, June 6. At this meeting Nass explained to the salesmen the new method of paying, commissions based upon collections. Levin then advised Nass that he was shop steward of the Union and that they proposed to let the Union bargain for them. There then followed a discussion concerning salesmen who might terminate their employ- ment, and Nass offered in such cases to give 30 to 60 days after termination of employment for collection, the salesmen to get commissions on amounts collected, less bad accounts . Levin stated that speaking for the, salesmen, he would not accept the offer. Nass asked the salesmen if Levin represented them. Some answered in the affirmative. Others nodded their heads and no one dissented. Nass then offered to permit withdrawals of 50 percent from balances. This was'refused by Levin as was a further offer of 60 percent. Levin stated that according to instructions from the men he could not accept less than 100 percent 4 In spite of Levin's refusal to take less than 100 percent on balances, at the June 6 meeting it appears the respondent did modify its previously announced policy of commissions based on collections by permitting withdrawals up to 50 or 60 percent, and the undersigned so finds 6 Prior to June 6' the salesman had not been advised by Nass that any certain percentage of balances could be with- drawn over and above commissions on collections. On Sunday, June 7, Weiner and Rosenfield visited Himes and'Catlow, who had adjoining summer camps at a lake which is about 20 miles from Providence. Weiner and Rosenfield stated that they-were going to resign from the Union for the reason that Nass at the June 6 meeting had said that the salesmen could withdraw some money. There was a general discussion between the four men about the Union and they agreed that at that time there was nothing they could get out of the Union. However, IIimes and Catlow did not commit themselves to resigning. Weiner and Rosenfield stayed at the camps for about 2 or 3 hours. Catlow left his camp at about 9: 15 p. m. and arrived at his home at about 10 or 10: 15. There he found Weiner and Nass waiting in a'car in front of his house. Weiner and Catlow then proceeded to the kitchen, while Nass remained in another room. Catlow told Weiner he had decided to resign from the Union, whereupon Weiner went to Nass and said : "Bill here has decided to withdraw." Nass produced a typewritten group resignation letter addressed to the Union and 3 The resignations were sent by registered mail. The employees involved were, Joseph Shepard, Bernard Weiner, Ralph S. Rimes, Harry Schupack, Alexander Hatch, William Catlow, and Joseph Rosenfield. 4 The findings with respect to this meeting of June 6 are in accordance with the testimony of Levin. It is undisputed and is supported , in substance, by all witnesses of both the Board and the respondent. 8 This finding is based on the undisputed testimony of Himes and Catlow. With respect to the June 6 meeting, Catlow testified ' "He (Nass ) then said that at any time that we wanted to draw money we could draw money up to 50 or 60 percent of what we had belonging to us, to our credit, over and above our regular salaries ." Concerning the same meeting, Rimes testified : "We had been assured by Mr. Nass at the office meeting that he was going to allow us to withdraw some of our money that we had there." I 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Catlow signed it. Weiner and Rosenfield had signed the resignation before Cat- low. Nass said : "All right" and "Good Night." Catlow then called Hones and told him that he (Catlow) was-going to resign from the Union and that Nass and Weiner had just left his home. He also sug- gested that Himes could go to the office and resign Weiner also visited the homes of Hatch and Schupack on Sunday night (June 7) and secured their signatures on the group resignation This was after his visit to Catlow's home.' Schupack was not sure if soirieoiie was in Weiner's car. - Himes decided to resign from the Union on the night of June 7 after the phone call from Catlow. On the morning of June 8 at the office he saw Nass and told him that he was going to resign from the Union Nass produced the group resig- nation letter and Himes signed it. Rimes gave Nass his union membership book and button. The next day at the request of Nass, Himes signed an individual resignation from the Union which was already prepared in typewritten form. After Mimes signed, Nass shook hands with him and thanked him. Rimes did not mail the resignation to the Union or pay for its postage. On Monday, June 8, Joseph Shepard received a call from Nass and was asked by him to "come in-and see-him." At the office Nass said: "There is a letter of resignation and the boys are all satisfied, and will you sign it?" Nass referred to the group resignation and Shepard signed it' The resignation was on Nass' desk Shepard usually went into the Providence office every 'morning except Mondays. On Tuesday morning (June 9) Nass called Shepard into his (Nass') office and Nass gave him a prepared individual resignation. Nass said • "They decided to have individual resignations." Shepard signed the resignation and left it on Nass' desk. He did not put it in an envelope or pay for mailing it. Shepard had not made up his mind to resign from the Union until asked by Nass to sign the individual resignation Nass has the power to hire and discharge the salesmen. The above-mentioned actions and statements attributed to Nass are undisputed. Accordingly, the undersigned finds that Nass instigated the resignations from the Union by modifying the respondent's method of paying commissions and by requesting and soliciting the salesmen to sign letters of resignation and to return to the Union their membership books and buttons.' The salesmen had decided to organize 8 Schupack testified that Weiner got to his house at about 8 or 9 p in However, Hatch and Schupack signed the group resignation after Catlow. 7 Shepard in his testimony apparently has confused the dates of his conversations with Nass Shepard testified that Nass asked 'him to sign the group resignation two or three days after June 6 and the individual resignation on, Monday (June 8 ) It is apparent, how- ever, from the entire testimony that these resignations were signed on different days and that the signing of the group resignation preceded the signing of the individual resignation. 8 Respondent contends that the salesmen first thought about resigning from the union on the night of June 4. After the union meeting at the Narragansett Hotel on that night a few of the salesmen , including Hatch and Weiner, discussed the Union . During that dis cussion , Hatch related some unpleasant union experiences that he had had previously and Weiner stated that he was not satisfied with some of the answers that Blender had given at the meeting On the next day, as testified to by Hatch, Hatch met Rosenfield and told him that the Union did not look good to him and that he was no longer in favor of it. Rosenfield agreed Later on the same day , Rosenfield and Hatch met Weiner and according to Hatch all three decided to resign from the Union The undersigned does not give any credence to Hatch 's testimony in this connection because none of the three men took any positive action in resigning from the Union prior to at least, June 6, the date on the group resignation and the date upon which . Nass advised the salesmen that they could withdraw 50 or 60 percent of their balances. It is significant that none of the other four salesmen, with the possible exception of Schupack, who resigned from the Union had decided to resign prior to June 7, the date upon which the evidence clearly shows that Nass began to actively participate in tht solicitation of resignations ' With respect to the testimony that Weiner was dissatisfied with some of Blender's answers, it appears that Weiner requested that one of the salesmen be permitted to accompany Blender during negotiations and that Blender explained why such procedure woudl not be advisable. I STANDARD WHOLESALE COMPANY 927 and join a union because respondent had announced a new policy of paying commissions based on collections rather than on sales. Nass, by informing the salesmen at the June 6 meeting for the first time since the new payment policy had been announced that withdrawals of 50 or 60 percent would be permitted, to a large extent eliminated the desire for unionization. In fact, Blender in his letter to the respondent dated June 5 had demanded payment to the salesmen of balances then to their credit with the respondent. The undersigned finds, particularly in view of Nass' subsequent solicitations for resignations frorn the Union, that Nass put into effect a change, in the new commission payment policy on June 6 in order to discourage the salesmen from retaining membership in the Union. The undersigned finds that by Nass' actions and reiharks described above the respondent has interfered with, restrained, and coerced its employees in the exer- cise of their rights guaranteed in Section 7 of the Act. ' C The refusal to bargain collectively with the Union 1. The appropriate unit The complaint alleges that all salesmen of the respondent employed at its Providence office, exclusive of executive, supervisory and office employees, con- stitute a unit appropriate for the purposes of collective bargaining. The answer of the respondent denies the appropriateness of the tacit alleged in the complaint. At the hearing, respondent contended that the unit, in addition to the Providence salesmen, should include William Dawley and Ambrose Frederico, liquor sales- men employed,at respondent's Newport office. The respondent employs nine liquor (salesmen at its Providence office and two liquor salesmen at its Newport office: Nass has supervision over all these sales- men However, the' Newport salesmen make their sales returns to and are on the pay roll of the Newport office. Nass has meetings every Saturday morning with' the Providence salesmen and holds similar meetings at other times with the Newport salesmen at Newport Newport is about 25 or 30 miles from Provi- deuce and it appears that the Newport salesmen attend the Saturday meetings at Providence only on rare occasions such as Christmas and one or two other times a year. The duties of all salesmen are substantially the same except that they operate in different territories.' The respondent has a separate State liquor license for each office The proposed agreement submitted bye the Union to the respondent and corre- spondence concerning same seem to indicate that the Union sought to represent all liquor salesmen of the respondent. Nevertheless, it is undisputed that neither the Union nor the Providence salesmen sought to organize the Newport salesmen, and the undersigned finds upon the entire record, that the respondent was aware of this fact. In view of the above facts, the undersigned finds that all the salesmen of the respondent employed at its Providence office, exclusive of executive, supervisory, and office employees, have at all times material herein, constituted and do now constitute an appropriate unit, and further finds that said unit will insure to the It does not appear that Weiner or any other salesmen objected to Blender's advice in this connection It is significant that neither Weiner nor Rosenfield were called as witnesses by respondent' From the evidence it appears that Rosenfield was one of the most active men in getting the salesmen to organize and to join the Union and one of the most active in getting the salesmen to resign. •928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •employees of the respondent the full benefit of their rights to self-organization and collective bargaining and otherwise effectuate the purposes of the Act.° 2 Representation of a majority in the appropriate unit' There is no dispute that all nine salesmen at the Providence office had desig- nated the Union as their bargaining agent on June 2'and were members in good standing of the Union as of June 4, 1942. As described above, the defections from the Union were caused by the respondent's unfair labor practices. In view of the unfair labor practices herein 'described, the fact that seven of the nine em- ployees in the unit resigned from the Union on or about June 8 is immaterial in determining the union's representation of the respondent's employees.10 The undersigned accordingly finds that on and before June 13, 1942, a majority of the employees in the unit above-described, to wit, nine out of nine, had desig- nated the Union as their representative for the purpose of collective bargaining with the respondent, and therefore, pursuant to Section 9 (a) of the Act, the Union has been since July 13, 1942, and is now the exclusive representative of all said employees for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment: 3. The negotiations with the respondent On June 3, Blender wrote to the respondent advising that the Union represented a majority of the respondent's wholesale salesmen and 'requesting a conference for the purpose of negotiating an agreement. On June 5, Blender again wrote to the respondent and, in addition to calling attention to the grievances of the salesmen, suggested that negotiations be commenced without delay In answer to his letter dated June 3, Blender received a letter dated June 5, from Herman J. Aisenberg, attorney for the respondent, stating that he would be glad to confer with Blender and that he would await further word from him as to an appoint- ment. On June 6, Blender had a telephone conversation with Aisenberg and in accord- ance with that conversation sent Aisenberg the following letter : DEAR MR AISENmeiia : This will acknowledge receipt of your letter dated May (sic) 5th and in accordance with our telephone conversation of today, I am herewith enclosing a draft of a proposed agreement which I understand you will discuss with your client, the Standard Wholesale Co., after which you will make arrange- ments for a definite conference and advise me accordingly. At such a con- ference we shall be prepared to submit sufficient evidence to prove conclu- sively that we represent all,of the salesmen, who are members in good stand- ing of this Union. Thank you for the courtesy of your prompt reply. I am, Very truly yours, Louis J. BLENDER, Executive Vice-President. No answer was received from Aisenberg or the respondent to the above letter. On or about June 10, Blender received individual resignations in identical form from seven of the nine salesmen belonging to the Union._ Blender then wrote a letter, dated June 12, to Aisenberg, referring to a telephone conservation on June 9, during which Aisenberg had stated that he had referred the proposed contract 1 0 Matter of Burroughs Adding Machine Company, 14 N. L. R B 832 'IN. L R B. v. Bradforfd Dyeing Association, 310 U. S 318. See'footnote 8, supra STANDARD WHOLESALE COMPANY 929 to his clients on the previous day and that he would let Blender know within a day or two concerning a conference, and stating that he (Blender) would appre- ciate hearing from him (Aisenberg) upon receipt of the letter. On the morning of June 13 Blender and Aisenberg had another phone conversation, during which the seven resignations were discussed Aisenberg wished to know if the Union then represented a majority of the salesmen. Confirming this telephone con- versation, Aisenberg sent the following letter dated June 13, 1942, to Blender: DEAR MR BLENDER : - Confirming my conversation over the phone with you this morning in which you stated that you had received seven resignations from membership in your union from the employees of Standard Wholesale Co., it is the posi- tion of the company that negotiations for a contract should be postponed until you can satisfy it that you now represent a majority of its salesmen. If you do represent a majority of the salesmen, I am instructed to inform you that the company will be glad to negotiate with you at any time it is convenient for you. .• -- However, I would like to have from you a list of the names of the sales- men that you claim you now represent, and such evidence as you see fit to submit as to proof of your right of representation. As soon as I have received the above information from you, I will immedi; ately notify you as to whether or not we recognize your right to negotiate for these men and if we do recognize your right in this regard, I will then arrange for an appointment with you - I shall await further word from you in this matter. Very truly yours, s/ HERMAN J. AISENBERD. There were no further negotiations after June 13, 1942. 4 Concluding findings Prior to June 13, the respondent knew that the Union represented a majority of its employees and,had not at any time questioned that majority. That the respondent was not questioning the Union's majority in good faith on June 13 is evident from its course of conduct , found to be in. violation of the Act, in which it sought through Nass to undermine the Union's majority . Accordingly, the u ndeisigned finds that the respondent on June 13 , 1942, and at all times tliereafter refused to bargain collectively with the Union as the exclusive representative of its employees within the appropriate'unit. IV. THE EFFECT..OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, trathe, and, commeice among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. 7IIE REMEDY Since it has been foundithat the respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent refused to bargain collectively with the Union as the representative of a majority of the salesmen in an appropriate unit. 513024-43-vol. 47-59 930 DECISIONS -0F. NATIONALAABOR RELATIONS BOARD Any loss of union member'sliip 'prior to and since the refusal to bargain must be attributed to* the unfair labor practices of the respondent It will be the purpose of these recommendations to restore as nearly as possible the status quo, giving effect to the'Union's majority as of June 4, 1942. . Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : Conclusions of Law 1. Distillery, Rectifying, and Wine Workers International Union of America, Local No. 8 (A. F. L.), is a labor organization within the meaning of Section 2 (5)'of the Act. , 2. All of the salesmen of the respondent employed at its Providence office, exclusive of executive, supervisory, and office employees, at all times material herein constituted and do now constitute a unit appropriate for the purposes of' collective bargaining, within the meaning of Section 9 (b) of the -Act 3. Distillery, Rectifying and Wine Workers International Union of America, Local No 8 (A. F. L.), was on June 13, 1942, and at all times thereafter has been, the exclusive representative of the employees in the above-described unit for the purposes of collective bargaining, within, the meaning of Section 9 (a) of the Act. - - -4. By refusing on June 13, 1942, and at all times thereafter to bargain collec- tively with Distillery, Rectifying and Wine Workers International Union of America, Local No 8 (A. F. L ), as the exclusive representative of its employees in the appropriate unit above described, 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 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. 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 , Standard Wholesale Company, and its officers, agents, successors,, and assigns shall: 1. Cease and desist from (a) Refusing to bargain collectively with Distillery Rectifying and Wine Work- ers International Union of America, Local No 8 (A F. L ), as the exclusive rep- resentative of its salesmen employed at its Providence office, excluding execu tives, supervisory, and office employees ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of'the right to self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or In otection, as guaranteed in Section 7 of the Act. 2. Take the following, affirmative action, which then uiideisigned finds will effectuate the policies of the Act (a) Upon request, bargain collectively with Distillery, Rectifying and Wine Workers International Union of America, Local No, 8 (A. F L.), as the exclusive representative of all of its salesmen employed at its Providence office exclusive STANDARD WHOLESALE ' iCOM:PANY 931 of executives, supervisory, and office employees, in respect to rates of pay, wages, 'hours of employment, and other conditions of employment; and, if an agree rent, is reached on any such matters, embody said agreement in a signed contract with Distillery, Rectifying and Wine Workers Intel national Union of America, Local No 8 (A F L.), if requested by that Union to do so; (b) Post immediately in conspicuous places throughout its office in Providence, Rhode Island, 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 has been recommended' that it cease and desist in paragraph 1 .(a) and (b) of these recommendations; and, (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of these recommendations ; (c) Notify the Regional Director for the First Region in writing within ten -(10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, 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 14, 194- 2any 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, Washing- ton, 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. ' JOHN H. EADID, Trial Exarnmer. Dated : November 24, 1942.