The Toledo Desk & Fixture Co.

In the Matter of THE TOLEDO DESK & FIXTURE Co. and UNITED WHOLE- . SALE, WAREHOUSE AND DELIVERY EMPLOYEES, LOCAL 363 (CIO) Case No. 8-C-2000.Decided January 8, 1948 Mr. John A. Hull, Jr., for the Board. Marshall, Melhorm, Wall d Bloch;, by Mr. Arnold F. Bunge, of Toledo, Ohio, for the respondent. Mr. Lowell Goerlich, of Toledo, Ohio, for the Union. DECISION AND ORDER On February 28, 1947, Trial Examiner John H. Eadie' 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 forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. On November 17, 1947, the respondent filed a motion to dismiss the com- plaint and for leave to adduce additional evidence in support of its motion, alleging that the Union has not complied with the filing re- quirements of Section 9 (f), (g), and (h) of the National Labor Rela- tions Act, as amended. For the reasons stated in an earlier decision,' the motion is denied. On November 20, 1947, the Board at Washing- ton, D. C., heard oral argument, in which the respondent and the Union participated." The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed.3 The power of the Board to issue a Decision and Order in a case such as the instant one, where the charging union has not complied with the filing requirements speuufled in Section 9 (f), (g), and ( h) of the National Labor Relations Act, as amended, was decided by the Board in Matter of Marshall and Bruce Company , 75 N. L. R. B 90. 2 Member Reynolds has read the transcript of this oral argument. 3 The original charge , filed on June 17, 1946 , and the amended charge and the complaint, dated November 25, 1946 , recite "United Retail , Wholesale & Department Store Employees of America, Local 363 ( CIO)" as the name of the Union herein charging violations of Sec- tion 8 (1) and (5) of the Act According to testimony received at the commencement of the heaiing, the name of the International was changed in May 1946 to "Retail Wholesale and Department Store Union (CIO)," but the proper name of Local 363 was, and is, United Wholesale, Warehouse and Delivery Employees, Local 363 The Trial Examiner granted, 75 N. L. R. B., No. 89. 744 THE TOLEDO DESK & FIXTURE CO. 745 The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's exceptions and brief, the arguments of counsel, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions and modifications noted below : 1. We agree with the Trial Examiner, and find, that on and after August 11, 1944, the respondent refused to bargain collectively with the Union as the exclusive representative of certain of the respondent's employees in violation of Sections 8 (5) and 8 (1) of the National Labor Relations Act 4 We base this finding (1) on the refusal of the respondent to accord exclusive recognition to the Union prior to March 5, 1946,6 and (2) on the refusal of the respondent to sign any contract upon which it might agree with the Union until the unfair labor practice proceeding pending in Case No. 8-C-1678 should have been finally settled .6 2. The Trial Examiner found that, despite certain changes in prod- uct, in plant location, and in policy respecting the employment of women in production work, the evidence "conclusively" shows that the nature of the respondent's business has not changed in any mate- rial respect insofar as the appropriate unit is concerned since the is- suance of the Board's decision in Case No. 8-R-1474, the earlier repre- sentation proceeding concerning the respondent's employees; 7 and he thereupon concluded that the appropriate bargaining unit for the over the respondent 's objection , a motion by the Board attorney to amend the name of the charging union in the formal documents in the instant case to United Wholesale , warehouse and Delivery Employees, Local 363 ( CIO). The respondent excepts We believe that there is no real doubt and that the respondent has no doubt as to the identity of the Union The purpose of the afore-mentioned amendment was to make clear upon the formal record the identity of the labor organization charging 8 (5) herein as the labor organization certified by the Board on August 11, 1944 , in Case No 8-R-1471, the prior representation proceeding The identity of the charging labor organization and the certified labor organization is supported by other evidence in the case • (1) On the Union's letterhead of the first commu nication sent to the respondent by the Union on August 18, 1944, the Union' s name reads, "United Wholesale, Warehouse and Delivery Employees, Local 363, affiliated with The United Retail, Wholesale and Department Store Employees of America" , (2) in the formal papers in the War Labor Board proceedings instituted in 1944, involving contract issues between the certified labor organization and the respondent and made part of the instant record , the certified labor organization is named "United Retail Wholesale and Department Store Employees of America, #363, CIO," and its iden- tity as the certified labor organization was apparently not questioned in the War Labor Board proceedings ; and (3) both in the contract proposed by the Union and in the contract proposed by the respondent , each of which contains a recognition clause , the Union is des- ignated as on the Union's letterhead. Sections 8 (5) and S (1) of the Act prior to amendment appeal, respectively, as Sections S (a) (5) and 8 (a) (1) of the Act as amended We reject, as without merit, the respondent's contention that a written statement sub- mitted by the respondent to the War Labor Board that "the Company recognizes that under the Wagner Act it is bound to deal with the CIO as a result of the certification " constitutes the exclusive and unequivocal recognition to which the certified Union is entitled Prior to the issuance of the complaint in Case No 8-C-1678, the respondent predicated the signing of a contract with the Union on a withdrawal of the charges and thereafter- requested that the complaint be dismissed, or final disposition of the case be effected, as a condition precedent to the signing of a contract with the Union 7 56 N L R B 1022. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent's employees is the trait therein found appropriate. The scut determination by the Board in the earlier representation case was in accordance with the substantial agreement of the parties at that time, and we agree with the Trial Examiner that the appropriate- ness of this unit has not been impaired by the production and other changes referred to above. Indeed, the respondent not only did not question the appropriateness of the unit after the mentioned changes had occurred, but even affirmatively accepted the unit in the contract which it proposed and proffered the Union on or about March 5, 1946. We shall, however, rephrase the description of the appropriate unit in accordance with the present requirements of the Act, as amended. We find that all employees of the respondent, excluding office work- ers, spot laborers, working foremen, and all supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The Trial Examiner found that, on and at all times after August 11, 1944, the date of the certification issued in Case No. 8-R-1474, the Union was the duly designated bargaining representative of the re- spondent's employees in the appropriate unit. Although the respondent shortly after certification questioned the composition of the unit found appropriate by the Board, it later con- ceded this issue. On the other hand, the respondent, prior to the issuance of the certification, questioned the representative character of the election upon which the certification was predicated; and, at all pertinent times subsequent to the certification, it questioned the majority status of the Union among employees in a unit that freely expanded and contracted as the respondent's production schedules from time to time dictated. It appears that between April 25, 1944 (the day of the hearing in the representation case), and June 21, 1944 (the day of the directed election), the respondent lost its Navy con- tracts, and its pay roll was reduced from 115 on the day of the hearing, to 108 on the eligibility day, and to 29 on the day of the election. Of 26 valid votes cast and counted, the Union received 16 votes, thus demonstrating its majority representation not only among the eligible employees voting, but among all employees then in the unit. In the absence of any specific showing relating to the future operating plans of the respondent, the Board concluded that, under all the circum- stances, the election was representative in character and certified the Union as the exclusive bargaining representative of the employees concerned." It is well established that an employer may not allege a purported loss of majority as a reason for refusing to bargain with 8 Matter of Toledo Desk and Fixture Co , 57 N. L R B 1294, 1296 , Hatter of Consoli- dated Vultee Aircraft Coi poration, 64 N L R 13 400, 404 THE TOLEDO DESK & FIXTURE CO. 747 a certified bargaining representative where such loss of majority status is attributable even in part a to the effect of unfair labor practices of the employer. As we.have frequently noted, a certified union, absent unfair labor practices on the part of the employer, may normally be expected to absorb newly added employees into its membership and to maintain its majority status during such pay-roll changes as are attributable to economic consideration. In view of the respondent's unfair labor practices, we must therefore presume the continuation of the Union's majority representation, and, on the basis thereof, we find, as (lid the Trial Examiner, that the Union is, and at all times since its certification on August 11, 1944, has been, the statutory bar- gaining representative of the respondent's employees.10 4. The Trial Examiner found that the "record is replete with evi- dence showing that the Union was diligent and reasonable in attempt- ing to reach an agreement with the respondent." The respondent takes exception to this finding, asserting that up to April 1946, the Union demanded union shop and check-off provisions and that at the last meeting in May 1946, when all the contract provisions except wages were settled, the Union abruptly ceased to bargain and did not ask the respondent for further conferences. The respondent contends that it was -burdened with no duty to seek out the Union. A chronological survey of the meetings and conversations between representatives of the Union and the respondent, against the back- ground of unfair labor practices begun in 1944 and yet continuing, convinces its that the Union was diligent and reasonable in its at- tempts to reach an agreement with the respondent and that the Union abandoned its efforts only when, in May 1946, further effort on its part seemed futile' and the only reasonable course remaining to it was the submission of the issues to the Board on charges filed. 711E REMEDY The Trial Examiner recommended that the Board issue an affirma- tive unqualified order that the respondent bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment. The respondent urges (1) that in view of the lapse 'It may be assumed that sonic employees abandon a union, impelled in part by factors other than the effects of the unfair labor practices of their employer, but to disentangle oher factors from such discouraging effects is unpossible so long as the unfair labor prac- tices are unremedted Matter of Karp Metal Pmodacts Coniponr/, 51 N L 1, B 621, 624. The tact that another labor organization, which lost to the Union in the election held in 1944, claims a present majority representation, is thus mnnatenial on the issue respecting the presumption of the charging union s continuing majority The Trial Examiner there- fore pioperly excluded testunonv on this matter 10Afatter of Lane Lifeboat cC Daoit Cotporation, GO N L 11 B 473, 453, and cases cited therein "N. L R B v Htgltiland Shoe, Inc. 110 F (2d) 215, 220-224 (C C A 1) 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of time since the certification of the Union,12 the increase of, and turn-over among, employees in the unit,13 the changes in product and plant,14 the elimination of women war workers who required training for their jobs,15 and the reconversion of the respondent's business from that of a war products contractor to a manufacturer in a competitive field of peacetime production,16 an affirmative order to bargain with the union will not effectuate the policies of the Act and enable its em- ployees to bargain through representatives of their own choosing; (2) that only an immediate election will serve to determine the desire of its employees in that respect; and (3) that, in any event, the re- spondent should not be required to bargain with the Union herein con- cerned, since it has not complied with the requirements of Section 9 31 As noted above, the Union was certified on August 11, 1944 11 In January 1947, at the time of the hearing in this proceeding, only 2 of the employees -eligible to vote in the election of 1944 were listed on the respondent's pay roll As noted above , the pay roll which determined eligibility to Note in the election listed 108 employees in the appropriate unit. The full complement of eligible employees in the unit on election day was 29 Following the election, the respondent's employment pay roll increased and declined with the fluctuating demands of its wartime contracts On August 29, 1945, following V-J Day, its pay roll listed 18 employees In the following weeks employment increased to 55 on January 23, 1946, when the move to the new plant had been effected At the new plant, on a peacetime basis, employment steadily increased to 240 on the pay roll of December 25, 1946. While the shift in plant location to some extent may have shifted the source of later acquired employees away from Toledo proper to the smaller suburban towns, the respondent transferred employees at the Toledo plant to the new location at Maumee and, with these employees as its substantial working force, steadily expanded its business and little by little increased its pay roll to its present size 19 From the fall of 1941 to May 1, 1944, the respondent made mess' tables and benches (part-wood and part-steel and later all-steel) for the Navy Fioni May to September 1944, the respondent made wood and steel products for the Maritime Commission After September 1944, the respondent began making civilian wardrobes, largely wooden In the spring of 1945 , the respondent manufactured steel ordnance shells Following V-J Day, the plant was virtually shut down, but later, and to the end of November 1945, the respondent manufactured toys for the Christmas trade. In December 1945 and January 1946, the respondent moved its plant At the new plant from January to August 1946, the respondent manufacture (] spray doors, wood radio cabinets , and kitchen cabinets After August 1946, the respondent made exclusively steel kitchen cabinets while prior to the war the respondent was engaged in custom work, wherein skilled woodworkers were essential to its business, it clearly appears that, especially since 1941, the respondent has been principally engaged in wood-and-steel and in all-steel manufacture on a mass production basis, wherein skilled and unskilled employees are most commonly needed It was during this war period that the certification was issued There is nothing in the record to indicate any appreciable change in skills among the respondent's employees in the appropriate unit since the Board's issuance of the Union ' s certification and nothing to indicate that the shift to the new plant produced any substantial changes affecting the work of the employees concerned ' 15 while the respondent urges that the elimination of women war workers who required ,on-the-lob training for work at its plant and its present policy to lure only men at its plant should have some bearing upon the issue, we believe that, in the absence of any specific showing as to difference in skills or other qualifications for employment, the shift in policy to lure only men for employment is not clearly distinguishable from the factor of turn-over which we have already considered Insofar as the record discloses, the institu- tion of the policy of all men workers in production departments occasioned no sudden or drastic changes in employment 11 A curve of the chart prepared by the respondent and marked the respondent's Exhibit 8, showing pay-roll fluctuations in its operations during 1944 and 194:5, indicates that, despite the ups and downs characteristic of employment in the war years, employment in 1946 has been stabilized and adjusted to a steadily iiic'reasing production of peacetime -commodities. THE TOLEDO DESK & FIXTURE CO. 749 ,(f), (g), and (h) of the Act, as amended, and would not be qualified to initiate either complaint or representation proceedings before the Board at this time. We have duly considered and weighed the arguments of counsel bearing upon the remedy appropriate under all the circumstances of this case. For reasons which we have clearly set forth in earlier cases and which are applicable to the broad issues now before us, we believe that an affirmative order to bargain with the Union will best effectuate the policies of the Act 17 We shall condition our bargaining order '18 however, upon compliance 19 by the Union with Section 9 (f), (g), and (h) of the amended Act within thirty (30) days from the date ,of the Order herein. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) ,of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, The Toledo Desk .& Fixture Co., Maumee, Ohio, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Wholesale, Ware- house and Delivery Employees, Local 363 (CIO), if and when said labor organization shall have compiled, within thirty (30) days from the date of this Order, with Section 9 (f), (g), and (h) of the Act as amended, as the exclusive bargaining representative of all the re- spondent's employees, excluding office workers, spot laborers, working foremen, and all supervisors ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Wholesale, Warehouse and Delivery Employees, Local 363 (CIO), or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, as amended. 2. Take the following affirmative action, which the Board finds will effectuate the policies of, the Act: (a) Upon request, and upon compliance by United Wholesale, Warehouse and Delivery Employees, Local 363 (CIO), with the filing 17 Matter of Karp Metal Products Company, 51 N L R B 621, 626 , Swift and Company, 63 N L R B 718, enf'd 162 F (2d) 575 (C. C A. 3), and cases cited therein , hatter of Fiank Bros Company, 44 N L R B. 898, enf'd 137 F. (2d) 989 (C C. A 1), aff'd 321 U. S. 702 ; Matter of Bethlehem Steel Company, 73 N L R B 277, and cases cited therein 18 Matter of Marshall and Bi ace Company, 75 N L R. B. 90, Matter of Plankinton Pacbing Company, 75 N. L It B 241. 19As to what constitutes compliance in this respect, see Matter of Northern Virginia Broadcasters, Inc, 75 N. L R B. 11 _ 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requirements of the Act, as amended , in the manner set forth above, bargain collectively with United Wholesale, Warehouse and Delivery Employees, Local 363 (CIO'), as the exclusive representative of all its employees in the above-described appropriate unit, with respect to grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement : (b) Post in conspicuous places throughout its plant at iAaunlee, Ohio, copies of the notice attached hereto marked "Appendix A." 20 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by it for thirty (30) consecutive days there- after and also for an additional thirty (30) consecutive days in the event of compliance by the Union with the filing requirements of the Act, as amended, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of this Order, and again within ten (10) days from the future date, if any, on which the respondent is officially notified that United Wholesale, Warehouse and Delivery Employees, Local 363 (CIO) has met the condition hereinabove set forth, what steps the respondent has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees WE WILL NOT refuse to bargain collectively with UNITED WHOLE- SALE , WARE I WWHSE AND DELIVERY EMPLOYEES , LOCAL 363 (CIO), as the exclusive representative of all employees , excluding office workers, spot laborers , working foremen , and all super- visors, provided said labor organization complies within thirty (30) days from the date of the aforesaid Order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. 20 In the event th,It ibis Order is enfoleed by decree of a Cncuit Coutt of Appeals there shall he inserted betole the words , "A DECISION AND OI1DER" the'aoltl" , 'DECREE Oh' THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING " THE TOLEDO DESK & FIXTURE CO. 751 WE WILL NOT in any manner interfere with, restrain, or co- erce our employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist UNITED WHOLE- SALE, WARELIOUSE AND DELIVERY EMPLOYEES, LOCAL 363 (CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL BARGAIN collectively upon request with UNITED WInOLE- S ALE, WAREHOUSE AND DELIVERY EMPLOYEES, LOCAL 363 (CIO), as the exclusive bargaining representative of all employees in the unit described herein with respect to labor disputes, griev- ances, wages, rates of pay, hours of employment, or other terms or conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; provided said labor organization complies within thirty (30) days from the date of the aforesaid Order of the Board, With Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. The bargaining unit is : .All employees of the respondent, excluding office workers, spot laborers, working foremen, and all supervisors. - All our employees are free to become or remain members of the above-named union or any other labor organization. THE TOLEDO DESK & FIXTURE Co., Employer By ---------------------------------------- Dated---------------- ( Representative ) (Title) This notice must remain posted for 30 days from the date hereof, and also for an additional 30 days in the event of compliance by the Union with the requirements of Section 9 (f), (g), and (h) of the Act, as amended. This notice must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Dlr. Johh A. Hull, Ji., for the Board. 111r Arnold F Runge, of Toledo , Ohio, for the respondent. lllr Lowell Goeiltch, of Toledo , Ohio, for the Union. STATEMENT OF THE CASE Upon an aillended charge duly filed on November 25), 1946, by United Whole- sale, Warehouse and Delivery Employees, Local 363 (CIO),' herein called the At the commencement of the hearing herein, counsel for the Board moved to amend the formal documents in the case so as to shoe the correct name of the Union as above The motion was granted oven the respondent's objection The original charge and complaint named the TJnnon as "United Retail, Wholesale & Department Store Employees of America, Local 363 (CIO)." 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighth Region (Cleveland, Ohio), issued its com- plaint dated November 27, 1946, against The Toledo Desk & Fixture Co, herein called the respondent, alleging that the respondent 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. Copies of the complaint together with notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that at various times since August 11, 1944, the respondent had refused to bar- gain collectively and in good faith with the Union, although the Union was the representative of a majority of the employees in an appropriate unit. The re- spondent filed an answer in which it admitted the jurisdictional allegations of the complaint but denied the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held at Toledo, Ohio, on January 13 and 14, 1947, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board, the respondent and the Union were each 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. At the conclusion of the Board's case, the respondent moved to dismiss the complaint. The motion was denied The respondent i enewed the motion at the close of the whole case and ruling thereon was ieserved The motion to dismiss is hereby denied. Also at the conclusion of the case, counsel for the Board moved to amend the complaint to conform to the proof as to non-substantive matters. The motion was granted over the respondent's objection. At the conclusion of the testimony counsel for the Board and the respondent argued orally before the undersigned. The respondent and the Union submitted hiiefs to the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is an Ohio corporation with its plant and principal office located at Maumee, Ohio, where it is engaged in the manufacture and sale of kitchen cabinets. Prior to January 24, 1946, it conducted its operations at Toledo, Ohio- The principal raw materials used by the respondent in the course and conduct of its business are steel, hardware and metal sinks. During the 12-month period immediately prior to November 27, 1946, the respondent purchased and received raw materials having a value in excess of $50,000, of which amount in excess of 30 percent was received from points outside the State of Ohio. During the same period the respondent shipped from its plant finished products having a value in excess of $100,000, of which amount in excess of 40 percent was shipped to points outside the State of Ohio. At the hearing the respondent admitted it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Wholesale, Warehouse and Delivery Employees, Local 363 (010), is is labor organization which admits to membership employees of the respondent. THE TOLEDO DESK & FIXTURE CO. 753, III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate unit and representation by the Union of a majority therein, The complaint alleges, and in its Supplemental Decision dated August 11, 1944,2 the Board found, that all employees of the respondent, but excluding office work- ers, spot laborers, supervisors, working foremen, and all other supervisory em- ployees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- stitute a unit appropriate for the purposes of collective bargaining. In its answer the respondent denied the appropriateness of the unit alleged in the complaint. At the hearing the respondent contended, in effect, that the above-described unit was no longer appropriate by adducing evidence showing, (1) that on or about January 24, 1946, the plant was moved from Toledo to Maumee, Ohio, (2) that the respondent no longer employed female persons, and (3) that the nature of the respondent's business had changed. The undersigned finds no merit in the respondent's contentions. The respondent's present plant is located about 10 miles distant from its former plant in Toledo.' While the uncontradicted evi- dence does show that the respondent no longer employs female persons and that it manufactures a product different from that made at the time of the Board's certification, nevertheless the evidence conclusively shows that the nature of the respondent's business has not changed in any material respect, insofar as the appropriateness of the unit as alleged in the complaint and as found by the Board is concerned.' Accordingly, the undersigned finds that all employees of the respondent, but excluding office workers, spot laborers, supervisors, working foremen, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, have at all times material herein constituted and do now constitute an appropriate unit within the meaning of the Act ; he finds that said unit will insure to the employees of the respondent the full benefit of their rights to self- organization and collective bargaining and otherwise effectuate the purposes of the Act. On August 11, 1944, the Board certified the Union as the exclusive representa- tive of all employees in the afore-mentioned appropriate unit for the purposes of collective bargaining. The respondent contends that the Union never did and does not now represent a majority of its employees in the appropriate unit. In this connection Frank Crook , president of the respondent , testified that only two or 2In the Matter of The Toledo Desk and Fixture Company, 57 N L R B. 1294 . In this decision the Board did not exclude "office workers " from the unit found to be appropriate. This omission , no doubt, was through inadvertence, as is shown by the Board 's initial Deci- sion and Direction of Election , dated May 29, 1944 , in the same Matter, specifically excluding "office workers " See 56 N . L R. B. 1022 Moreover , throughout the record in the instant proceeding it conclusively appears that the parties not only acted on the assumption that office workers had been excluded from the unit , but also that they were in agreement that they should be excluded a The city limits of Maumee adjoin the city limits of Toledo. 4 The evidence shows that the respondent 's present product, kitchen cabinets , is made of steel ; that since the Board's certification and until the plant was moved to Maumee, the respondent produced products made in part or in whole of steel and wood ; and that the same employees , including female employees , were used on both the wood and steel products It appears that the respondent no longer employs female persons through preference, and not because of any lack of skills involved. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three of the employees in the appropriate unit who were working for the respond- ent in June of 1944, are still employed s In its Decision and Order, dated February 18. 1946,° the Board found that the respondent had discriminated against nine of its employees because of their activi- ties on behalf of the Union and otherwise had interfered with, restrained, and coerced its employees In this case the Board also found that the respondent re- fused to accept the Union "as the employees' exclusive collective bargaining iepre- sentative after the employees had chosen that organization to represent them." As stated above, the Union was certified by the Board on August if, 1944, over 2 years prior to the issuance of the complaint in the instant proceeding Crook's testimony, moreover, indicates serious defections from the Union and shows it large turnover of employees during this period of time It conclusively, appears that such possible defections were caused by the unfair labor practices as found by the Board and as hereinafter found, and would therefore be immaterial in determining the Union's representation of the respondent's employees' Never- theless, in view of the findings hereinafter made, the question is presented as to whether or not it will effectuate the policies of the Act to find that at all times material herein the respondent had a continuing obligation to bargain collectively with the Union, notwithstanding indications that another labor organization now claims to represent a majority of the employees The under signed is of the opinion that such a finding is appropriate to effectuate the policies of the Act. Under all the circumstances, the possible adherence of a iua jorlty of the present employees to this other labor organization cannot be regarded as the untrann- meled expression of their will. It is rather the kind of action that employees would take who have been subjected to unfair labor practices such as the respondent committed, especially since from the uncontradicted evidence it appears that the respondent openly expressed its preference for that labor organization. As for the respondent's contention that almost all of the employees in the appropriate unit have left its employ and that it has hired many new employees since the Board's certification, these facts do not warrant an inference that the restraints engendered by the respondent's unfair labor practices are no longer operative, especially since such illegal conduct is in part unremedied and con- tinning Obviously, unremedied unfair labor practices exercise a coercive effect not only upon the immediate victims, but upon future employees as well If the respondent had negotiated in good faith for a contract with the Union, which it did riot do as will be hereinafter related, and had permitted the Union to organize new employees without illegal restraint, the Union undoubtedly would have retained its majority. In designating the Union as their bargaining agent, the employees expected a collective bargaining agreement to be consummated. Failure or refusal by the respondent to negotiate it contract with the Union naturally would result in defections and cause the employees to either seek 5 At the election conducted by the Board on Time 21, 1944, 25 valid votes wei e cast Of this number 16 were for the Union and 9 were for the Maumee Valley District Council of of Carpenters, Local 1359 (AFL) The approximate number of eligible voters amounted to 108 At the hearing Crook testified that Local 1359 of the Carpenters now chains to 1 ep- resent a majority of the iespondent's employees At the hearing herein the iespondent made an application for the issuance of a subpena duces tecum-directed to the Union, for the announced purpose of showing that the Union did not and does not now represent a majority of the employees The undersigned denied the application in view of certain find- ings of the Boai d in a complaint case hereinafter discussed G In the Matter of Toledo Desk of Fixture Coinpcniy, 65 N L R B 1086, 158 F (2d) 426 (C C A 6) 7 N L R B v Bradford Dyeing Association, 310 U S 318 - THE TOLEDO DESK & FIXTURE CO. 755 affiliation with another organization favored by the respondent or to abandon further attempts to secure their rights under the Act.' The undersigned accordingly finds that on and at all times after August 11, 1944, the Union was the duly designated bargaining representative of a majority of the employees in the aforesaid appropriate unit, and that, pursuant to the pro- visions of Section 9 (a) of the Act, the Union was on August 11, 1944, and at all times thereafter has been and is now the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 2. The refusals to bargain in good faith , Within 2 weeks after August 11, 1944, No Erwin, International Representa- tive of the Union, together with it bargaining committee composed of employees, met with Crook and Henry Bloch, the respondent's attorney At this meeting the respondent would agree to recognize the Union as bargaining agent only for its own members and refused to recognize it as the exclusive representative of all employees The Union submitted a proposed contract and the respondent indi- cated its approval of some of the clauses, but rejected others, including the recognition clause. About the end of September 1944, another meeting was held and a Conciliator of the United States Department of Labor was present At this meeting the respondent not only refused to recognize the Union as the exclusive representa- tive of all employees but further refused to accord recognition to the Union for certain employees claimed by the respondent to be "key people," even though such employees were members of the Union ° Thereafter and on or about October 19. 1944, the dispute was certified to the National War Labor Board on three issues. one of which was the question of recognition After a hearing on January 31, 1945, the hearing officer of the War Labor Board issued a report dated May 28, 1945, recommending that a "union shop and check-oft" be granted10 To this report the respondent filed "comments," which in substance opposed the recommendation concerning recognition of the Union. On August 10, 1945, the Regional War Labor Board issued a "Directive Order' adopting the hearing officer's recommendations. The respondent bled a petition for rev iew and on November 1, 1945, the National War Labor Board affirmed the Regional Board's directive. The respondent refused to comply " On or about November 28, 1945, Erwin telephoned L. D. Cope, respondent's peisoiinel manager and superintendent, and Cope told Erwin that he would try to get Crook to agree to a contract" Thereafter meetings were field on about .January 24 and February 5, 1940. As stated above, the respondent moved its plant to Manmee, Ohio, on January 24, and the Board in its decision of February 18, 1941;. found that the respondent had committed unfair labor practices At a meeting on about March 5, Cope presented a proposed contract to Erwin. 4 In the Matter of Karp Metal Products Co, Inc, 51 N. L It B 621 "The evidence indicates that other meetings between the Union and the respondent were held at about this time but the testimony in this respect is too indefinite for findings to be made All meetings mentioned herein were held at the request of the Union 10 The questions of union shop and check-off constituted one of the three issues certified to the War Labor Board In making the above recommendation the hearing officer disposed of the question of recognition 11 It appears that representatives of the Union and the respondent held several meetings din ing the pendency of the proceedings before the War Labor Board 11 Cope was not called as a witness It appears that Cope acted as respondent 's negotiator with the Union during this period of time. 766972-48-vol 75-49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This contract provided for recognition of the Union as the exclusive representa- tive of all production employees , but in some respects changed the unit originally found to be appropriate by the Board . Erwin made certain changes in the respondent's proposed contract and Cope at subsequent meetings stated that he thought the changes would be satisfactory . However , Cope stated that Crook would not sign a contract until the charges of violation of Section S (3) of the Act (found by the Board on February 18 as stated above ) were withdrawn On about April 8, another meeting was held at which Crook and an employee of the Board were present At this meeting Crook stated that the contract as amended by Edwin was satisfactory , but still insisted that the charges of discriminatory discharge be withdrawn before he would sign the contract " Thereafter on several occasions , the last of which was on May 22, Erwin telephoned Cope. In each instance Cope advised Erwin that Crook would not sign a contract unless and until the afore-inentioned charges were withdrawn" Erwin did not attempt to meet with the respondent after May 22, 1946, and the respondent never dill contact the Union after that date 3. Conclusions Throughout the protracted negotiations it is clear that the respondent was acting in bad faith This is obvious in view of the fact that the respondent refused to recognize the Union at the beginning of negotiations as the exclusive bargaining agent for all employees in the appropriate unit, although the Union was certified by the Board on August 11, 1944 The respondent continued to refuse to accord the Union full recognition until March 5, 1946, at which time the i espondent submitted a proposed contract. It is to be noted in this connection that the Union approved the respondent's proposed contract with some few changes. thus abandoning its own proposed contract which had been submitted at the first meeting shortly after August 11, 1944, and its position on check-off and union shop. In fact, the record is replete with evidence showing that the Union was diligent and reasonable in attempting to reach an agreement with the respondent. On the other hand, it conclusively appears that the respondent's policy in the negotiations was one of delay, delibei ately prolonging the negotia- tions until such time as it thought the Union had lost its majority The respondent never did ask the Union for a meeting, even though the delays were purportedly for the purpose of giving the respondent time to consider the Union's proposals Finally on March 5, 1946, the respondent slid submit a counter- proposal, but this was not submitted in good faith as shown by the fact that the respondent insisted that the pending unfair labor practice charges be withdrawn before it would sign a contract. Under all the circumstances the undersigned is of the opinion that the respondent's original refusal to accord the Union full recognition after certification by the Board and its insistence that the unfair labor practice charges be withdrawn before it would sign a contract are per se violative of Section 8 (5) of the Act, and it is so found. 13 Erwin testified credibly concealing the meeting on April S Crook, in effect, denied that lie had said that the contract as amended was satisfactory. However, he admitted that during the negotiations he had insisted on withdrawal of the unfair labor practice charges. It appears that some of these charges were withdiawn or settled Ouida Ryan, whose em- ployment was terminated by the respondent on about April 28, 1944, testified credibly that during it conversation with Crook during April 1946, they agreed that in return for his signing the contract with the Union she would settle her claim for back wages for i500 and that after signing a waiver site received this amount in June. Crook denied that he had made such an agreement with Ryan 14 The evidence indicates numerous other meetings between iepresentatives of the Union and the respondent, in addition to those which have been specifically referred to above- Crook testified that the last meeting took place about the end of May 1946. THE TOLEDO DESK'' '& FIXTURE CO. 757 Accordingly, the undersigned finds that at various times since August 11, 1944, and at all times thereafter, the respondent refused to bargain collectively and in good faith with the Union as the exclusive representative of the employees within the appropriate unit, and thereby interfered with its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section 111, above, occurring 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has failed and refused to bargain with the Union as the representative of all its employees in an appropriate unit, it will be recommended that it cease and desist therefrom and that, upon request, the respondent bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment. In view of the extensive nature of the respondent's unfair labor practices, both those heretofore found by the Board and thosa herein found, manifesting a determination to defeat and discourage self-organization by its employees and otherwise to defeat the purposes of the Act, and in order to effectuate the guar- antees of Section 7 of the Act, it will be recommended that the respondent be ordered to cease and desist from in any manner interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act's 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. Unite(] Wholesale, Warehouse and Delivery Employees, Local 363 (CIO), is a labor organization within the meaning of Section 2 (5) of the Act 2. All of the employees employed by the respondent, but excluding office workers, spot laborers, supervisors, working foremen, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act 3 United Wholesale, Warehouse and Delivery Employees, Local 363 (CIO), was on August 11, 1944, and at all times thereafter has been the exclusive repre- sentative of all employees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4 By failing and refusing at various times since August 11, 1944, and at all times thereafter, to bargain in good faith with United Wholesale, Warehouse and Delivery Employees, Local 363 (CIO), 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 such unfair labor practices, the respondent has interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in 11 May Department Stores v N L R B, 326 U S 376 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act, thereby 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 foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, The Toledo Desk & Fixtuu e Co, its agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to bargain collectively and in good faith with United Wholesale, Warehouse and Delivery Employees, Local 363 (CIO), as the exclusive repre- sentative of all its employees in the unit hereinabove found to be appropriate; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Wholesale, Warehouse and Delivery Employees, Local 363 (CIO), or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guar- anteed in Section 7 of the Act; (c) Upon request, bargain collectively with United Wholesale, Warehouse and Delivery Employees, Local 363 (CIO), as the exclusive representative of all its employees in the unit hereinabove found to be appropriate in respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement; (d) Post at its plant in Maumee, Ohio, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Di- rector for the Eighth Region (Cleveland, Ohio), shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Eighth Region (Cleveland, Ohio), in writing, within ten (10) days from the receipt of this Intermediate Report, what steps the respondent has taken to comply herewith It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report the respondent notifies the said Regional Director in writing that it will comply with the foregoing recommen- dations, the National Labor Relations Board issue an order requiring the re- spondent to take the action aforesaid. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file with the Board, Rochambean Building, Washington 25, 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; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the THE TOLEDO DESK & FIXTURE CO . 759 party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of Son vice on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. A&further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor must be made in wilting to the Board within ten (10) days from the date of service of the order transferring the case to the Board. JOHN H. EADIE, Trial Examiner. Dated February 28, 1947. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their rights to self-organization, to form labor organizations, to join or assist UNITED WHOLESALE, WAREHOUSE AND DELIVERY EMPLOYEES, LOCAL 363 (CIO), or any other labor organization, 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. All our employees are free to become or remain members of this union or any other labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization. WE WILL BARGAIN collectively upon request with UNITED WHOLESALE, WARE- HOUSE AND DELIVERY EMPLOYEES, LOCAL 363 (CIO), as the exclusive repre- sentative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employ- ment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All of our employees, but excluding office workers, spot laborers, super- visors, working foremen, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. THE TOLEDO DESK & FIXTURE CO., Employer. Dated -------------------------- By ----------------------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.