The Andrew Jergens Co.

In the -Matter of THE ANDREW JERGENS COMPANY and GENERAL WARE- HOUSEMEN 'S UNION, LOCAL 598, OF THE TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, A. F. L. Case No. 21-C-2713.-Decided February 26,1948 Air. George H. O'Brien, for the Board. Mr. Frank Mergenthaler, and Gibson, Dunn and Crutcher, by Messrs. J. Stuart Neary and Ira C. Powers, of Los Angeles, Calif., for the respondent. Mr. John C. Stevenson, of Los Angeles, Calif., for the Teamsters. DECISION AND ORDER On February 3, 1947, Trial Examiner T. B. Smoot issued his Inter- mediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that the respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, exceptions to the Intermediate Report and a brief in support thereof were filed by the respondent. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions and nmodifi- cations noted below.2 1 The respondent, in its brief, contends that the complaint should have been dismissed because the bill of particulars which was furnished to the respondent was not an amended pleading inasmuch as theie vvas no motion to amend the complaint The record shows that the respondent was apprised of all the issues involved in the case by the bill of particu- lar s, that all the issues were tu'ly- litigated, and that the respondent had ample opportunity to answer them The respondent, moreover, does not claim surprise or paeludice by reason of the failuae to amend the pleadings. Those provisions of Section 8 (1) and (5) of the National Labor Relations Act, which the Tarsal Examiner found were violated herein , are continued in Section 8 (a) (1) and 8 (a) (5) of the Act as amended by the Labor Management Relations Act, 1947 76 N. L. R.B,No.51 363 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. We agree with the Trial Examiner that the respondent refused to bargain in good faith, in violation of Section 8 (5) of the Act. The respondent contends that the Union itself was guilty of a refusal to bargain, and in support thereof it asserts that the Union stated at the January 17, 1946, meeting that it would not continue to negotiate, or sign, a contract unless the contract contained a union security clause. Representatives of the respondent and the Union held a meeting on January 17, 1946, for the purpose of negotiating a contract. Although there is some variation in the testimony of the individuals attending this meeting, as set out in the Intermediate Report, we are convinced therefrom, and we find, that the following transpired : The parties dis- cussed the provisions of the contract, and were "in fairly close agree- ment" on everything except union security. The respondent's repre- sentatives stated that the respondent had always been opposed to any form of union security, that they did not have authority to negotiate concerning this matter, and that they would have to obtain such author- ization before doing so. The Union, however, made it clear that it was insistent upon negotiating some form of union security. At the end of the meeting, the parties agreed, in effect, to defer further discussion until the respondent's representatives obtained permission to negotiate on the subject of union security. The respondent's representatives told the Union that an answer to their request could be expected in about a week. No answer was received, however, and during the following weeks the Union pressed the respondent concerning the matter. The Union finally told the respondent that if the latter did not attempt to negoti- ate sincerely by February 18, the Union would resort to economic pressure . On February 15, the executive board of the Union voted to strike the respondent's plant on February 16.3 That same clay, Febru- ary 15, the respondent sent the letter, set forth in the Intermediate Re- port, to the Union ; it was not received until after the employees went out on strike on February 16. As the Trial Examiner found, this letter offered no proper basis upon which to negotiate on the question of union security. It appears from the credible undenled testimony of John E. McGee, secretary-treasurer of the Union, that on February 16 lie told Roth- enberg, the respondent's vice president in charge of the Burbank plant,4 "that if he saw fit to sit clown and negotiate with us . . . I would be there at any time it was all right with him." The record The Union decided to stoke the plant on Satu7da v, February 16, rather than on Mon- dav, Febiu ;u i 18, because come of the employees iepoited to the Union that tite respondent was pieparina fora strike on February 18 ' Rothenberg was one of the respondents officials with ww hom _ilergenthaler had to discuss the question of a union secuuty clause in the contract. THE ANDREW JERGENS COMPANY 365 also shows, according to the credible testimony of Stevenson, the Un- ion's attorney, that after receiving the respondent's letter he called Mergenthaler, attorney for the respondent, and told him that "the position taken in the latter with respect to the failure to bargain until the War Labor Board had revoked or disposed of their order was an impossible situation, that insofar as I knew the . . . War Labor Board was not in existence and that I had offered at all times in dis- cussing this case with Mr. Neary to do anything within the union's power to assist them in clarifying the atmosphere so that we could go ahead with recognition, negotiations, and a contract." That union security is a proper subject matter for collective bar- gaining is well settled. This does not mean, however, that an em- ployer must agree to the incorporation of such a provision in a collec- tive agreement. Nor, of course, does it mean that a union may insist upon the reaching of an agreement concerning union security as a condition precedent to negotiating on the remaining provisions of a contract. Here, however, we are faced by special facts which reflect upon this employer's good faith. The respondent refused to negotiate on the question of union se- curity, assertedly because of an outstanding War Labor Board Direc- tive Order directing the respondent to sign a maintenance-of-member- ship contract with the Cosmetic Workers, a labor organization which the Board in the earlier representation proceeding had found to be defunct. Yet, the same respondent had refused to comply with this Directive Order on the ground that the same Cosmetic Workers did not represent a majority of its employees. The respondent's position is also inconsistent with its asserted willingness to negotiate with re- spect to the remaining terms of a contract, inasmuch,as whatever pro- hibitions may flow from the War Labor Board Directive Order would be equally applicable to the execution of any kind of contract with the Union. Upon the basis of the foregoing facts and the entire record, we are of the opinion that the respondent was not acting in good faith in advancing the War Labor Board Directive Order as a ground for its inability to negotiate with respect to union security.' We are of the opinion, and find, that the respondent from the very outset entered into negotiations with a fixed determination not to grant G glen genthalen testified that he spoke to Stevenson after the respondent's letter of Feb- ruan 13 iias sent but ' thcne was nothing about this particular case that I recall, when I talked to AIr Davis or _-It Stevenson" Neai}, another of the respondent's attorneys, did not testif, lion eo, er, we agree with the Tual Examiner that the war Labor Board Directive Older did not constitute a legal ban to negotiations A nth the Union It is, therefore, unnecessarv to resol, e the evidentiary conflict as to whether or not the Union tailed to seek withdraw at of the Directive Order in question. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union security provisions or even to discuss then with the Union.' Such complete foreclosure of discussion of a proper subject of collec- tive bargaining is a negation of the good faith bargaining required by the statute. The respondent contends that the Union also failed to fulfil its statutory obligation by allegedly refusing to continue negotiations on other phases of the contract until the matter of -union security was resolved. The testimony concerning the January 17 meeting and the events thereafter indicate that the only real stumbling block to a successful conclusion of negotiations was the respondent 's refusal and failure to negotiate concerning union security. Although the parties had not reached complete and definite agreement on all other items, the record shows that these other matters presented no diffi- culty, as is demonstrated by the testimony of the respondent's own witnesses, set forth in the Intermediate Report. Thus, while re- fusing to negotiate with the Union on the single significant issue re- maining between the parties, the respondent sought to engage the Union in a discussion of matters involving no substantial disagree- ment. Under these circumstances, we do not regard the Union's insistence that the respondent bargain with respect to union security as though it imposed a condition precedent upon negotiation of other terms of the contract. Nor do We regard the Union's conduct, under these circumstances, as absolving the respondent of its own derelictions. We find, in agreement with the Trial Examiner, that the respondent i efused to bargain with the Union on and after January 17. 1946, within the meaning of Section 8 (5) of the Act. 2. We also find, in agreement with the Trial Examiner, that the respondent's unilateral grant of a wage increase on July 1, 1946, with- out prior consultation with the Union, which was still the statutory bargaining representative, constituted an independent refusal to bar- gain within the meaning of Section 8 (5) of the Act. 3. The general appropriateness of the bargaining unit herein was determined in the Board's decision in the previous representation proceeding.$ No issue with respect to such unit has been raised in this proceeding. We note, however, that the unit a includes production assistant supervisors who should be excluded as no longer being "em- The respondent argues that the Union stated at the Sannai1 17 meeting that the union security ciance of the proposed eontiact was to be rewi itten and it copy cent to the respond- ent The Union attorney denied that these was any undeustanding to that ef-cet We find no merit in the respondent' s atgument as it defense to its conduct We also find it unneces- sary to resolve the conflict in testimony in view of the fact that the issue lueiem is ishether the respondent refused to hargam concerning any union security pion ision , and not the exact Avoiding of such a provision 11 Matter of Andrew Jergens Coanpany, 64 N L R B 989 'Alatter of C. V Iliad Company, Inc, 76 N L R B 158, decided Febiu.ns 12 191S THE ANDREW JERGENS COMPANY 367 ployees" within the meaning of the Act, as amended, and watchmen who should be excluded as falling within the statutory definition of guards. Accordingly, we shall amend the unit by eliminating there- from the production assistant supervisors and watchmen presently included therein. These exclusions do not affect the Union's majority status. 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 Andrew Jergens Company, Burbank, California, and its officers, agents, suc- cessors, and assigns shall: 1. Cease and desist from : (a) Refusing to'bargain collectively with General Warehousemen's Union, Local 598, of the Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor, as the exclusive bargaining representative of all production and maintenance employees at the Burbank, California, plant of the respondent, includ- ing janitors, truck drivers, and maintenance leadmen, but excluding watchmen, office employees, shipping clerks, maintenance foremen, production supervisors, production assistant supervisors, and all other supervisors ; (b) Unilaterally changing wages which would affect employees in the aforesaid appropriate unit without prior negotiation with Gen- eral Warehousemen's Union, Local 598, of the Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor; (c) In any manner interfering with the efforts of General Ware- housemen's Union, Local 598, of the Teamsters, Chauffeurs, Ware- housemen and Helpers, affiliated with the American Federation of Labor, to bargain collectively with it, as the exclusive representative of its employees in the appropriate unit described above. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with General Warehouse- men's Union, Local 598, of the Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor, as the exclusive bargaining representative of the employees in the unit set forth above, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its plant at Burbank, California, copies of the notice attached hereto and marked "Appendix A." 10 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and main- tained by it for sixty (60) consecutive days thereafter, 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 Twenty-first Region in writing, within tell (10) clays from the date of this Order, 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 that : WE WILL bargain collectively upon request with GENERAL VV ARE- HOUSEMEN'S UNION, LOCAL 598, OF THE TEAMSTERS, CHAUFFEURS, \YAREI-IOUSE.MEN AND HELPERS, affiliated With the AMERICAN - FEDERATION or LABOR, as the exclusive representative of all em- ployees in the bargaining unit described herein With respect to rates of pay, Wages, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at the Burbank, California, plant, including janitors, truck drivers, and inainte- nance leadmen, but excluding watchmen, office employees, ship- ping clerks, maintenance foremen, production supervisors, pro- duction assistant supervisors, and all other supervisors. WE WILL NOT in the future unilaterally change wages which affect the employees in the bargaining unit described herein with- out prior negotiation with the above-named union. WE WILL NOT in any manner interfere with the efforts of the above-named union to bargain with us, and WE WILL NOT refuse 1, In the event that this Oider is enforced by deciee of it Circuit Court of Appeals, there shall be inserted, before the words. "A Decision and Order," the words, "A Decree of the United States Circuit Couit of Appeals Enforcing" THE ANDREW JERGENS COMPANY 369 to bargain with said union as the exclusive representative of all our employees in the above-described appropriate unit. TILE ANDREW JERGENS COMPANY, Employer. By ------------------------------ (Representative ) ( Title) Dated ------------------------ This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT .lr George H O'Bh ice, for the Board Mr Frank Mergenthater, and Gibson. Dunn and Cnaetcher'. by Messrs. J. Stuart .teary and Ira C. Power s, of Los Angeles. Calif , for the respondent Mr. John C Stevenson, of Los Angeles, Calif., for the Teamsters. STATEAl ENr of 71LE CASE Upon cltarges duly filed by General Warehousemen's Union, Local 59S, of the Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation, of Labor, herein called the Teamsters, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint dated October 3, 1946, against The Andrew Jergens 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 S (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 accompanied by notice of hearing thereon were duly served upon the respondent and the Teamsters. With respect to the unfair labor practices the complaint alleged in substance that respondent on or about January 16, 1946, refused and failed to bargain collectively in good faith with the Teamsters as exclusive representative of all employees in the appropriate unit and by these acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent in its answer filed October 14, 1946, denied that it engaged in or was engaging in any unfair labor practices Pun suant to notice a hearing was held from November 4 to 19, 1946, at Los Angeles. California, before the undersigned, T H. Smoot, the Trial Examiner duly designated by the Chief Trial Examinee The Board, the respondent, and the Teamsters were represented at the hearing by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all pan ties. At the close of the hearing a motion by counsel for the Board to confornn the pleadings to the proof was granted. During the hearing, on motion of counsel for respondent, paragraph 10 of the complaint, which alleged in substance that respondent had refused to bargain in good faith fronn November 19 1937, to January 1946, with the then duly designated representative of employees, the Soap and Cosmetics Work- ers Union. Local 21361, A F. of L. was stricken in its entirety On motion of counsel for the Board, paragraph I (g) of respondent's answer alleging in sub- 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stance that the Teamsters had entered into an unlawful combination having for its purpose inducement of carriers serving respondent and the customers of respondent to violate the laws of the State of California and of the United States, as a result of which the Superior Court of Los Angeles restrained the 't'eamsters from carrying on the said unlawful combination, was stricken in its entirety. At the close of the hearing the parties waived their right to argue orally before the undersigned. Counsel for the Board thereafter filed a Memo- randum of Points and Authorities, and counsel for the respondent filed a brief and proposed findings of fact and conclusions of law. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FAOr 1. THE BUSINESS OF THE RESPONDENT The Andrew Jergens Company, an Ohio corporation with its principal place of business located at Cincinnati, Ohio , is engaged in the manufacture and vale of toilet articles , cosmetics, and related products For this purpose it operates a plant at Burbank, California . with which the hearing hereon was concerned . During 1944, respondent made purchases of raw materials for use at its Burbank , California , plant, valued at approximately $1,500,000' of which approximately 50 percent represents the value of purchases originating outside the State of California . During the same period , the sales of the Burbank plant approximated $4,000,000, of which about $1 500 .000 represents the value of sales made to customers located outside the State of California It was stipulated at the hearing that the business of the company was substantially the same in 1946 as stated above.' Respondent did not deny that it was engaged in interstate connoerce It THE ORJrNI'/._XTION INVOLVED General Warehousemen's Union, Local 598, of the Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor, is ,i labor organization admitting to membership employees of the respondent at its Burbank plant. III. THE UNF.1IIi L'BOB PR'OrICFS A. The refusal to bargain 1. The appropriate unit and representation by the Teamsters of a majority therein It was not denied by respondent either in its answer or at the hearing that the unit pleaded in the complaint , theretofore determined by the Board; and her em set forth , is the appropriate unit: all production and maintenance employees at the Burbank , California , plant of respondent including watchmen and janitors, truck drivers, maintenance leadmen, and production assistant supervisors, but excluding office employees , shipping clerk , maintenance foreman. production supervisors, and all other supervisory employees with authority to hire, promote, ' The actual stipulation was that the business of the company was substantially as found by the National Labor Relations Board in the case entitled Matter of Andrew Jergens Com- pany, 64 N L R B 989 , and the facts regarding the business set forth above were taken from the Board findings in that case 2 flatter of The Andi ew Jergens Company, 64 N L R B 989. 4 THE ANDREW JERGENS COMPANY 371 discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action The undersigned finds that the above-described unit at all times material herein constituted and now constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act On December 17, 1945, pursuant to the Board's direction of election of Novem- ber 28 1945, an election was conducted among the employees in the appropriate unit set forth above. Theteafter, on January 4, 1946, the Board certified that the Teamsters had been designated and selected by a majority of the employees in the appropriate unit, and that the said organization was the exclusive repre- sentative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. The complaint alleged, and respondent (lid not deny, that at all times since January 4, 1946, the Teamsters has been and is now time representative of a majority of respondent's employees in the appropriate unit. The undersigned finds that the Teamsters on January 4, 1946, and at all times thei eafter was the exclusive representative of a majority of the employees in the aforesaid unit, and by virtue of Section 9 (a) of the Act, the Teamsters at all times was an(] now is the representative of all respondent's employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 2 The January 17 meeting On .lanuarl 9. 1346, the Teamsters by letter requested a meeting with the respondent for the purpose of negotiating concerning a contract and a meeting was scheduled for and held on January 17, 1946 The meeting was attended by Ira C Powers and Frank Mergentlialer. attorneys for the respondent, Samuel Genau, superintendent of the Burbank plant, Wilev Lynds, head of the personnel department, T. K. Sommermeier, Jr , assistant factory superintendent, and for the Teamsters, John C Stevenson, its attorney, and Burrel Davis, its then repre- sentative of Local598 of the Teamsters. As this was the only regularly scheduled meeting held between the parties and as each person present at the meeting testified thereon, all with some differences of opinion as to what occurred, the testimony of each such witness is set forth in some detail Burrel Davis stated that Mergentlialer opened the meeting by asking the t'eamsters' representatives if they had a copy of a proposed contract that they wanted to discuss with the respondent and when the Teamsters' representatives handed Mergenthaler a standard form of agreement which was then used by Local 598, Mergenthaler said that he would like to make a comparison between that contract and a contract that he brought forward and said had been discussed with the Chemical Workers Local 21361. Thereupon the parties made a com- parison between the two contracts, paragraph by paragi aph Davis testified, "After informing the representatives of the company that our primary request before discussing the contract at all was the payment of retroactive pay under a former War Labor Board order of 5 cents per hour and to other points as stipulated in the order, also that we wanted to settle or agree, come to some agreement upon the Union's security before we discussed further any of the contract so far as negotiations were concerned." Davis said that no wage pro- posals were made to the company, that Mergenthaler asked questions as to the interpretation of some clauses in the agreement, and that again the union se- curity question was discussed He testified, "I stated and Mr. Stevenson stated at that meeting that we were very desirous of settling the union security clause 781902-48-vol. 76-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or question before we further discussed any part of the contract or wages at all Mr Mergenthaler made the statement at the time that that would have to be taken up with the company and an answer given us at a future date. ills. Stevenson asked at the time how long it would take to get an answer That we didn't want to wait a prolonged period of time for an answer and to the best of my recollection 1 believe that the answer was given by Mr Mergenthaler that lie couldn't give us any definite date when an answer would he forthcoming " Davis testified that there was a discussion on seniority, work days, work weeks, holi- days with or without pay, and "the many other things that are covered by both of the agreements," and he stated that many of the clauses after cos rection were agreed to by the parties "until we came to the point of union security-and we left that as I formerly stated, that we would receive an answer from Mr. Mer- genthaler after he took that particular point up with the company; the answer of which I never received." He said, "The meeting ended after Mr. Stevenson told Mr. Mergenthaler, Mr. Powers, and the other gentlemen present that we didn't care to try to consummate an agreement until we settled the union se- curity clause, also that we didn't think that we would have too much trouble getting together on the rest of the agreement if we could settle that point That we were definitely sure that we could reach an agreement on the rest of the agreement and wages. That it would be acceptable by the membership and Mr. Stevenson and myself told the gentlemen present at the nieeti ng that anything we tentatively agreed to there would have to be ratified by the people we repre- sented that woked for Andrew Jergens Company" No effecting (late or place was arranged when the meeting broke up. Davis further said that Mergenthaler had brought up at the meeting that he was "a little appiehensive about con- sununati ng in agreement with [the Teamsters when there wits a War Labor Board order outstanding which may call foe his company having to bargain with us and another union also" Stevenson replied to this that the Teamsters had been certified and that therefore the other union (Cosnie!mc Workers Union, Local 213U1) would not carry any weight or authority as repi esenting the People of the respondent' Also that there was a discussion as to the different types of union seemmty and the difference between the union shop agieement, closed shop agreement, maintenance of membership, preferential Kirin::, etc , and Davis testified that he and Stevenson said they would be "just as well satisfied with a maintenance of membership clause" as they would be with a closed or union shop agreement. John C Stevenson, attorney for the Teamsters, testified also that discussions were held of various paragraphs in the two agreements not including wages, and "when we came to the union security clause we weie unformed by Mr. 1l iergen- thaler that lie had no authority to negotiate a union security clause, also that lie knew the company had consistently opposed the union security clause. At that point Ave hung up in the negotiations with his statement that lie would write to the company " He further said, "I made sever al proposals with regard to a union security clause, such as maintenance of membership and various modified forms which I thought might meet their appro al, but Ave were told that Mr. Mergenthaler had no authority to negotiate any type of union secuuty clause. With that the proceedings hung up until Mr. Mergenthaler could, on his statement, write to the company and endeavor to find out their position and get their consent to negotiating some sort of union security" I '('lie Boars} had theretofore found that the Cosmetic Ayorkeis Union Lora] 21361 had not functioned as a lahoi oig,iiiiration since July 1, 1945 Hotter of 4ndreii Jei peels Company, (4 N L R 13 989. THE ANDREW JERGENS COMPANY 373 Stevenson further testified that there was a discussion on the order outstand- ing of the War Labor Board that granted a 5-cent increase, which also granted maintenance of membei ship and recognition to the Cosmetic Workers Union He said, speaking of respondent's counsel, "They continuously threw that order in as a barrier to negotiations on union security, maintaining that the War Labor Board order compelled theme to recognize the old Soap and Cosmetic Workers and we were maintaining (sic) in stating that the War Labor Board order was absolutely it nullity insofar as the Teamsters were concerned, that we were certified-the War Labor Board was out of existence and there was no reason why we should not be recognized and negotiate on the proposition of union security " He further stated. "-Nobody reached a disagreement until we came to the question of union security As a matter of fact I think we discussed every working condition of our agreement as against the Soap and Cosmetic Workers. So we asked them, I asked DIr Mergenthaler if lie would endeavor to contact the company by wire, it possible, to get some authorization to negotiate on union security. I told hum-that the company had delayed negotiations over a long per iod of time with the for mer union, and we didn't want the same delays, that we didn't want the union jeopardized by the process of slowly beating them down by the reason of having no contract. They promised to give me an early answer " T. K Sonimermeier, Jr , testified that Stevenson and Powers discussed the two contracts paragraph by p:uagraph until they finally came to the paragraph on union securtty. He stated, "However the union repiesentatnes said they wanted a closed shop and I believe DIr Powers said, `Can't we make it beside a closed shop' DIr Davis said they better sign a contract or else And Mr Stevenson at that time said, `1Vell, if you will pardon us, we have got an important engagement.' And on the way out of the office stated that, `Andy likes to make lotion and if we don't get sonic action on this we will see lie doesn't make any more'" That is appioxunately all Sommermeier remembered of the meeting Simnel Genau testified as to the January 17 meeting, that "Well, there is quite a discussion at that meeting in regard to the contract of the Teamsters and a previous contract, rather previous agreement we had with the Cosmetic Union The clauses were-all the clauses were discussed in detail to a certain extent until the last clause When we came to the last clause regarding union securit, -l don't recall in so many words what was said, but the main thing was that All- Stevenson said that there was no more discussion until that union secniit^ clause was settled That was the primary object of the meeting" Genaur further stated that Stevenson made that statement "toward the end of the meeting" and that he did not recall anything else in particular that was said daring the meeting except that "We seemed to be !it fairly close agreement with everything" but union seam ity; that Stevenson said that wages were "not I nporlant,'' that "often the other thing was settled that the regut.u scale through- out the country would probabl} pt evail and we could come to an agreement on that'' He stated that tllergenthalei started. "\Ve would have to get ilia nag ement's o k or approval on union security," that Stevenson wanted to know how long it would take and that Dlergenthalet said that lie could not tell hum, and that it(; further meetings were scheduled Wiley Lynds testified that Stevenson had stated that the union was asking for ri closed shop and that Uergenthaler stated that ".)It .lei gees had not : gi eed to a closed shop in the past, and that he didn't know what the answer from DIr Jergens might be " And that Stevenson said in answer to that, "Call it anything you want. all of our coati acts tore closed shop contracts-we don't intend to make 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any exception for the Andrew Jergens Company " He further said in reg.uds to the union security clause that "Near the end of the meeting the matter of the closed shop was brought up Mr. . Stevenson asked that Mr. Mergenthaler get in touch with management in Cincinnati and report to him the attitude of the man- agement towards closed shop " And that Mergenthaler told Stevenson that he would report to him as soon as lie had word . He stated that as Stevenson was leaving them he made the remark that Mr Jergens liked to make lotion, and that the union meant business and intended to see to it that he didn't make any lotion unless he signed a contract. ha C. Powers, one of the respondent's attorneys , testified that after Stevenson and Mergenthaler exchanged contracts, Stevenson said, "IN lat we are interested in is getting an agreement on closed shop. If we can get an agi Bement on closed shop we can work the others out and if we can't get an agreement on closed shop then there won't be any negotiations and there won't be any agreement . And he further quoted Stevenson saying, "Andrew Jergens is not dealing with a peanut union, like this Soap and Cosmetic Workers. but he is dealing with the Teamster s, which is a National union with National affiliations We are not going to re-write our contract for Andrew Jergens . We have a union shop clause in our contract in all our contracts with this local all over Southern Califouua . There isn't going to be any variation for Andrew Jergens." He stated that after going over several clauses of the contracts, he came to paragraph II of Exhibit 3, the closed shop provision and that Stevenson started to read it and then told Davis that that was not the current clause on closed shops, that it would have to be rewritten anil further saying , "We have an entirely different clause that we use now. When we get back to the office we will send you a copy of the present current clause in lieu of paragraph II of our Exhibit 3 form. " He said further that tentative agree- ments were reached on other paragraphs of the contract , and also said that an agreement was reached to pay the 5 cents retroactive pay. He then testified that lie suggested that he would go ahead and line the contract up and Mr. Stevenson said, "No, there is no use writing it up until we get this union security settled because we are not going to discuss the contract or spend any more time with Andrew Jergens until we get an agreement on union security , because we have got to have that-if we don't get it we will put the Andrew Jergens Company out of business." Powers testified , "I said to him at that time that he might be running into liability for damages . He said he wasn ' t afraid of that, that Andrew Jergens would just have to realize he had a National union there on his hands and lie would just have to recognize this union and give theta union security before lie would get a contract . Otherwise he would have to be placed on the unfair list and not a truck would move in the whole United States nor a freight car in the whole United States with a single cake of Jergens Soap or Jergens products. They would not only do this, but they would move in on the other plants of The Jergens Company back east." Powers testified Mergenthaler told Stevenson that he would have to discuss this with the company and he would let him know and asked Stevenson if he would send over his rewiitten union clause which lie had mentioned, and Stevenson said he would do so Powers testified that SteN enson never did send him a redraft of the union security clause . He dal state that Stevenson ques- tioned Mergenthaler as to whether the company would even give them a main- tenance of membership clause . Also that Stevenson said they were not inter- ested in the War Labor Board order , they didn't think it had any force Frank Mergenthaler testified that the meeting was called for 2 o 'clock and lasted until about 4 o'clock . He stated that as soon as the contracts were THE ANDREW JERGENS COMPANY 375 exchanged Stevenson said, "Now let's get this clear, we are not going to sign up any contract unless it is a closed shop contract. We are not going to waste a mouth's time on this thin,-, we want this union clause agreed to before we consider anything else." Mergenthaler testified that "two or three times during the course of the conversation [Stevenson] made the remark that he did not see why it was fooling with such a little outfit as Jergens, that they weren't going to waste too much time on the Jergens Company He then made the statement two or three times to the meeting that they would tie up the plant unless they got a union contract, and a number of times during the conversaion, probably four or five times, he mentioned he thought there would be no contract until there was a union clause agreed to, there was no use of going on with any of the other clauses." He further testified that "Toward the end of the conference, Mr. Ste- venson in response to [Powers'] inquiry about wages . . . said, `Well, we are demanding 30 percent increase, but that is not a matter standing in the way. If we get this union security clause fixed up why we will go on with whatever the big boys do back in Washington."' Mergenthaler further stated, "We would revert to this union clause every once in a while and Mr. Stevenson wanted to know whether we would agree on some form of union security. His attention was called to the fact that we had not agreed to a maintenance of membership clause and that there was now outstanding a War Labor Board order of May 29, 1944, which directed the company to sign a maintenance of membership contract with the Soap and Cosmetic Workers Union, and pay . .. a retro- active increase retroactive to, I think, February 1, 1943. I told Mr. Stevenson at that time and long before that we had made many efforts to have that order modified by the War Labor Board so as to permit the company to pay the 5 cents without signing a contract with the union, but notwithstanding the efforts which we had put torth in this direction, the War Labor Board had declined to permit us to pay the 5 cents retroactively, that we would have to comply with the entire order, and we did not see how we could sign a contract with the Soap and Cosmetic Wokers Union and one with the Teamsters, and lie made the statement, `That order didn't affect them, was of no consequence to them. They had a designation and that was what they were working on.' Towards the end of the conversation the union clause in the contract was again hiought up and Mr. Stevenson looked up the clause in the printed form and made the statement that that wasn't the form they were using. That incidentally didn't happen to be a closed shop contract. And he said, I will prepare a draft of the modifi- cation or a redraft of the clause, and send it to you ' " Mergenthaler said that toward the end of the conference, Stevenson stated. "Now you understand that this IS a National outfit and we can prevent your getting any trucking facilities or any rail facility for the shipment of merchandise and unless we get this closed shop clause in the contract or a union security clause, we are going to tie up the entire plants (sic) all the way across the country, and you won't make any more Jergens Lotion." Mergenthaler said that Stevenson then left the conference and then testified, "Oh yes. there was one other thing he wanted to know, whether we couldn't agree on some union security term and I said that matter would have to be taken up with the compan', but I would let him know and he insisted on being told when the union would be advised on what the company was going to do about the union security and he insisted on my telling when it would be forthcoming and I replied that I might probably he able to let him have an answer within a week" He further testified that he said, "Now Mr. Stevenson, do I understand that there will be no further negotiations with reference to the other terms of this contract if there is no union security 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clause agreed upon?" And that Stevenson answered, "Yes" DZergenthaler said, "We are ready and willing to go on with the negotiations on the other pending the receipt of this reply from the company." Mergentlialer further testified, "Well, there was talk at that meeting of January 17 relative to various t}pes of union clauses such as union closed shop, union shop, and maintenance of membership Toward the end of the interview, Mr Stevenson made the remark that they would go for maintenance of membership if I remembered correctly. But that there would be, have to he. some foim of union security clause in the contract before they could proceed." It is clear from the testimony of all the persons present at the January 17 meeting that the parties were not far apart on all the issues except union security, that the Teamsters were insistent on some form of security, that respondent's agents would not negotiate on that point until They had consulted officials of the respondent Ill Cincinnati, and that Mergenthaler told Stevenson he would try to have an answer for him in a week. 3 Occurrences after the January 17 meeting There was no further contact between the patties until February 11 when. as Mergenthaler testified, Stevenson called him on the telephone and said that lie "had written or was about to write a letter to the [Los Angelesl Central Labor Council telling them to put The Andrew Jergens Company on the unfair list if he didn't get a reply to [the Teamsters'1 demand for a union security clause." DZergenthaler told Stevenson that he had not ^ et received an answer to his request for the respondent's decision on the matter. Stevenson called D[ergenthaler the next clay and advised him that they were going to inform all locals of the Teamsters throughout the country that Jergens was on the unfair list. DZergenthaler testified, "On each of those occasions I asked him if he was ready to go on with the rest of the contract which lie had started negotiating He said he wouldn't, there would be no contract unless there vv as a union security clause first agreed to " DZergenthaler further stated that sometime between Tuesday, February 12, and Friday. February 15, he was informed by Stevenson that the employees were going to strike Monday, February 18. He was positive that by the 15th lie knew there was going to be a strike the following Monday. He said that on the 15th "I was apprised by the counpany that this old order of the War Labor Board was still outstanding and they couldn't come to a deci- sion on any union security clause as long as that matter remained not cleared up " When Mergenthaler heard of that decision he wrote a letter to the Team- sters which reads as follows : In accordance with Mr. John Stevenson's request, I dill vviiting to advise that I represent The Andrew Jergens Company. Under date of May 29, 1944, the War Labor Board directed The Andrew Jergens Company to sign a contract with the Soap and Cosmetic Workers' Union as a collective bargaining agent of the production employees of The Andrew Jergens Company. The order further directed the company to make ceitain retroactive wage payments to employees in the appropriate unit. This order is still in effect, notwithstanding the fact that the company is of the opinion that the Soap and Cosmetic Workers' Union did not repre- sent a majority of the company's employees in the unit I have taken up with the company the question of whether or not it would agree to a term in the contract which we have been negotiating looking to union security for the Teamsters' Union. The company ands itself unable THE ANDREW JERGENS COMPANY 377 to come to a decision, upon this point ioitil the aboi,e nieatlolled order of the War Labor Board is revoked of disposed of in some other ananuer so as not to cause the company embariassment in the future DIy client is, however, ready and willing to continue negotiations as to other phases of the proposed contract [Italics added.] On Saturday morning, February 16, the Teanisteis put a picket line around the plant and have been maintaining a strike since that time Effective July 1, 1946, respondent without negotiation with the Teamsters, instituted new wage schedules constituting an increase of approximately 15 per- cent The respondent states, "This increase was substantially the same as the increase put into effect by Presidential decree and the order of the War Labor Board put into effect to settle wage disputes, that is IS cents." After the issuance of the complaint herein on October 10, 1946, Charles Winton, who was doing continual picket duty, received an overture from T K Sommer- meier, Jr, assistant factory superintendent, indicating that respondent might be willing to bargain Winton obtained authority from the Teamsters to talk with the respondent's officials and made arrangements with Sommermeier to meet him for the purpose of bargaining When they next met, Sommermeier refused to talk with Winton, stating that you tellows tried to deal us one from the bottom of the fleck on this" explaining that he meant that a complaint had been served on the company on a charge of failure to bargain and saying that he would not meet with Winton while the hatter was before the Labor Board. 4 Dlergenthaler's testimony at the hearing Under questioning by his own counsel, Mergenthaler testified at the hearing. on November 17, 1046, as follows Q. Have you been willing at all times since January 16 to negotiate with the Union on all terms of the contract? A I had no different instiuctions than to negotiate with the Teamsters Union for a contract As I have infornied Mr Stevenson a number of times we are ready to go on with the lest of the clauses of the contract Q You were also willing to discuss union security? A The situation with reference to union security has not changed from that outlined in my letter of February 15 to the Union, which is admitted here as Exhibit (i Mergenthaler further testified, speaking of the telephone conversations with Stevenson in the week of February 11, "After each of those telephone con- versations I urged the company to let us have sonic decision on the matter." He then testified on cross-examination : Q. Has the company come to any decision yet, DIr Mergentlialcr? A. I have not talked to them that I recall about the matter. But there is no change in the situation It is exactly as it was in February of 1946. The War Labor Board order is still there The Union has refused to con- tinue with negotiations Q That is, if you sat down to negotiate now you would negotiate every- thing except union security? A No, I would do exactly as I did in January, I would say to them "Gentlemen, I will take this matter up with the company and ascertain if we can get some sort of union security." 1 do not know what the answer to that question would be. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mergenthaler's reasoning in regard to the War Labor Board order was as follows: "The penalty imposed by that Act [Emergency Price Control Act] and Executive Order which was made pursuant to it . . . provided that no em- ployer would he permitted to use for any purpose whatever price fixing or for income tax purposes any portion of the income . to a person whose wages were increased. That meant an enormous penalty for The Andrew Jergens Company, to have all of that back pay and all of the compensation paid to that unit for the years 1943 and 1944. They couldn't use that compensation for either of those years as a deduction for income tax purposes " His further position was stated by him under cross-examination as follows: "Well, we couldn't sign a contract with a membership of maintenance clause with the Soap and Cosmetic Workers Union and at the same time sign a contract with the Teamsters Union with a maintenance of membership or some other union clause That, I think, would be a violation of the National Labor Relations Board I am not advising my client to violate that Act. We would find ourselves in hot water all the time if the signed up with one or the other of them. That. however, didn't prevent us from negotiating other phases of the contract" He further stated that the respondent always took the position that they would not comply with the order as far as the Soap and Cosmetic Workers' Union was concerned because that organization no longer represented a majority in the unit. Mergen- thaler under further cross-examination stated that it was true that respondent refused to contract with the Soap and Cosmetic Workers because they no longeL represented a majority and so refused to comply with the War Labor Board order to that effect and then upon being asked as of January 1946, if respondent objected to signing with the Teamsters Union because the War Labor Board had ordered them to sign a contract with the Soap and Cosmetic Union, he answered, "that was the basis of the company's stand on the union security clause with the Teamsters Union. It is stated in my letter of February 15- and I can't change that letter, that was the fact " His testimony was closed by the following : Q. And I gather the company is presently willing to negotiate with the Teamsters Union but it can't sign a contract as long as this War Labor Board order is outstanding? A. That is, there is no change, as I say, from the situation as it exiited February 15, 1946. I have had no further instructions about the matter. My last instructions on this matter were in January, to negotiate with the Teamsters Union. And the supplemental events relating to the union security clause, which was referred to the company 5. Conclusions The respondent's position on January 17, 1946, as explained on the witness stand by Mergenthaler, and its position on February 15, 1946, as shown b> his letter to the Teamsters, was the same as its position on November 17, 1966, the day on which Mergenthaler testified It was that respondent could not "come to a decision" on union security unless and until the War Labor Board order of May 29, 1944, (17 WLB 582) was modified or revoked. The Teamsters' position was stated by Stevenson at the January 17, 1046, meeting, that the War Labor Board order was a nullity and that respondent was legally bound to bargain with the Teamsters, the duly certified union. The undersigned is convinced that the Teamsters' position was correct and that in January 1946, the War Labor Board order was a nullity. National War THE ANDREW JERGENS COMPANY 379 Labor Board orders were never enforceable by any court, Employers Group of Motor Freight Caterers, Inc. v N. TV. L B, 143 F. (2d) 145; N. TV. L. B. v. Montgomery Ward & Co., Inc, 144 F. (2d) 528, N. TV L B v. U S. Gypsum, Co., 145 F. (2d) 97; May Department Stores Co. v. BD own, 60 F. Stipp 735; Jensen v. Sullivan, 19 N. W. (2c1) 697. Prior to V-J Day it was the custom of the National War Labor Board in case of non-compliance with its orders as its chairman stated "to refer the case to the Economic Stabilization Director for such action as the executive branch of the government might wish to take with respect to the application of executive sanctions, such as seizure of the property or the cancellation of War Production Board priorities on allocations of raw material " ` Chairman Garrison of the National War Labor Board in the letter quoted above further stated, "Since V-J Day the [National War Labor] Board policy has been not to refer any cases to the executive branch for the application of sanctions. Instead the Board has provided simply for the issuance of findings of fact with regard to non- compliance, after which the cases are closed. That policy will continue to be followed." Thus, in January 1946, the War Labor Board order was for all purposes a "nullity" as the respondent then was "no longer liable to be com- pelled by the National War Labor Board to honor" its order, as the National Labor Relations Board so held in Matter of Colonial Life Insurance Company of Ametica, 65 N. L. R B. 5S, issued December 29, 1945. In its brief respondent argues (as Mergenthaler testified) that: . . . The employees had been demanding that the Company pay the five cent increase which had been awarded retroactive to 1943, and the Com- pany desired to pay this sum; but there was no way the Company could legally pay this amount without also entering into a contract with the Soap and Cosmetic Workers Union granting them maintenance of member- ship rights The Order itself provided, IS WLR 582, that no portion of the Order should be put into effect unless all parts were put into effect, just as in the case of all other W it Labor Board orders. If the Company had i ,olated that Order and paid the five cent increase, it would have sub- jected itself to a penalty equal to the amount of the total wages paid during the years 1943, 1944 and 1945. Emergency Price Control Act, Volume 50 App., U. S. C A., Section 901, and Executive Order 9250, same Volume, pps. 315-6. See also Transcript pps 640-641. That is not material and it is no reason for refusing to bargain collectively with the certified union, the Teamsters. The order of the War Labor Board could not he enforced and the respondent was not required to pay the retroactive pay increase If the respondent bargained with the Teamsters about a retroactive increase and agreed to a 5 cent increase retroactive to the same date specified in the War Labor Board order that coincidence would not constitute a violation of the War Labor Board order. Thus it is shown respondent was refusing to bargain with the Teamsters on one important issue, union security, for legal reasons which were not valid and which respondent's agents should have known were not valid This cannot but Constitute a refusal to bargain. The fact that 9 months after February 15, 1946, respondent's attorney on the witness stand stated that its position was the same as on February 15, that the respondent could not "come to a decision" on the 4 Letter from Chairman Garrison of National War Labor Board to Chairman Herzog of National Labor Relations Board, November 26, 1945 For full text of letter see Matter of Colonial L0;e Insulance Company of America, 65 N L R B. 58 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union security issue until the War Labor Board order was modified or revoked, shows the lack of good faith in respondent's position The respondent argues ( p. 8, its brief) The record is clear , therefore, that the Company representatives endeavor- ed in good faith to discuss all issues of the contract, including Union security, and that no definite agreement was reached at the meeting of January 17th for the reason that the Union was unwilling to negotiate a contract until, and unless, the closed shop, or some other satisfactory form of security, was granted by the Company, and the Company was -unwilling to accede to this demand. This statement is not a correct restatement of the position respondent took either in its letter of February 15, or of its counsel at the January 17 meeting, nor is it the position taken by its counsel in November 1946, on the witness stand The position actually was as stated in the February 15 letter, • The Company finds itself unable to come to a decision upon this point [union security] until the above mentioned order of the War Labor Board is revoked or disposed of " Thus this is not a case where a company was refusing "to accede" to a demand for union security On the contrary, respondent herein was refusing, by dilatory conduct, to "come to a decision" on this important issue on the fallacious ground that the War Labor Board order stood in its way. And this position was adhered to from January 1946, up through the hearing 10 months later In view of the facts set forth above, and based on all the evidence, the under- signed finds that respondent refused to bargain with the Teanisteis from and after January 17, 1946. The undersigned further finds that respondent by unilaterally raising wages July 1, 1946, when its employees were on strike, without negotiating with the Teamsters, constituted a refusal to bargain with the Teamsters s IV THE FF ECT OF THE UNFAIR LABOR PRACTICES UPON COMMEIa,E 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, traffic, and connnerce 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 engaged in unfair labor prac- tices, 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 Teamsters from January 17, 1946, on, and that it, by acting unilaterally in raising wages in July 1946, without negotiating with the Teamsters, refused to bargain collectively. It is accordingly necessary in ordei to effectuate the policies of the Act, to require the respondent upon request to bargain collectively with the Teamsters as exclusive representative of its employees in the appropriate unit and to refrain in the future from acting unilaterally in any manner regarding 631a/ Departateii t Stoics v N L R B, 326 U S .376 , N L R B v Cro ion Can Co, 1,18 F (2d) 26. 3, Wilson and Co v N L R B , 115 F (2d) 759. N L R B V H G Hill Stores, Inc, 140 F (2d) 924, N L R B v Barrett Co , 135 F (2d) 959, Great Southern Trucking Co v. N. L. R B , 127 F (2d) 180 , N L. R. B. v Ani.erican Potash S Chemical Coi'p , 3 N L R B 140, affirmed 98 F (2d) 488 THE ANDREW JERGENS COMPANY 381 wages whereby employees in the appropriate unit may be substantially affected, without prior negotiation with the Teamsters, and the undersigned will so recommend. As there is no evidence that danger of the commission of unfair labor practices other than refusing to bargain collectively with the labor organization of its employees' choice is to be anticipated from the respondent's conduct in the past, the undersigned will not recommend that the respondent cease and desist from the commission of any other unfair labor practices Upon the basis of the above findings of fact and the entire iecord in the case, the undersigned makes the following: CONCLUSIONS OF LAW 7 1 General Warehousemen's Union, Local 598, of the Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor. is a labor organization within the meaning of Section 2 (5) of the Act. 2 All production and maintenance employees at the Burbank, California, plant of respondent, including watchmen and janitors, truck drivers, maintenance lead- men, and production assistant supervisors. but excluding office employees, shipping clerk, maintenance toreman, production supervisors 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 collective bargaining within the meaning of Section 9 (b) of the Act. 3. General Warehousemen's Union, Local 598. of the Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor was on January 17, 1946, and at all times thereafter has been the exclusive rep- resentative of all the employees in such unit for the purposes of collective bar- gaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with General Warehoil semen's Union, Local 598, of the Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor, as exclusive bargaining representative of employees in the appropriate unit, the respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5 By said acts the iespondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act (i. 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, and upon the entire record in the case, the undersigned recommends that the respond- ent, The Andrew Jergens Company, its officers, agents, successors, and assigns Shall: 1 Cease and desist from : (a) Refusing to bargain collectively with General Warehousemen's Union, Local 598, of the Teamsters, Chauffeurs. Warehousemen and helpers, affiliated 6 See N L R B v â.xpress l'ublishiag Go, 312 U S 426 7 Of respondent's proposed findings of fact, Nos 12 and 14 are accepted and the renrain- mg 19 are rejected, Respondent's proposed conclusion of law is rejected 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the American Federation of Labor, as the exclusive representative of all production and maintenance employees at the Burbank, California, plant of respondent, including watchmen and janitors, truck drivers, maintenance lead- men, and production assistant supervisors, but excluding office employees, slip- ping clerk, maintenance foreman, production supervisors, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherNN ise effect changes in the status of employees or effectively recommend such action ; (b) Unilaterally changing wages which would substantially affect employees in the aforesaid appropriate unit without prior negotiation with General Ware- housemen's Union, Local 598, of the Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor; (c) In any manner interfering with the efforts of General Warehousemen's Union, Local 5598, of the Teamsters, Warehousemen and Helpers, athliated with the American Federation of Labor, to bargain collectively with it 2. Take the following affirmative action which the undersignpcl finds will effec- tuate the policies of the Act : (a) Upon request bargain collectively with General Warehousemen's Union, Local 598, of the Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor, as the exclusive representative of all the employees in the aforesaid unit: (b) Negotiate with General Warehousemen's Union, Local 598, of the Team- sters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor, prior to taking any action regaidnnwages substantially affecting any emplol ees in the apps oprnate unit: (c) Post at its plant at Burbank, California, copies of the notice attached to the Intermediate Report herein marked "Appendix A " Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the respondent's representative, be posted by the respond- ent immediately upon receipt thereof and maintained by it for sixty (60) con- secutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by re- spondent to insure that said notices are not altered, defaced, or covered by any other material: (d) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the receipt of this Intermediate Report, what steps the re- spondent 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 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, Rochambeau 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 THE ANDREW JERGENS COMPANY 3S3 four copies of a brief in support of the Intermediate Report. Immediately upon the tiling of such statement of exceptions and/or briefs, the 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 service on the other parties of all papers filed with the Board shall be promptly made as re- quired by Section 203 65 As further provided in said Section 203 39, should any party desire permission to gigue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board T B. SMOOT, Trial Examiner. Dated February 3, 1947 APPENDIX A Nor'iCE TO ALL EMPLOSE'ES Pursuant to the recommendations of a Trial Examiner of the National Labor Relation, Foard. and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL bargain collectively upon request with GENERAL WAREHOUSEMEN'S UNION, LOCAL 598, OF THE TEAIi STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, affiliated with the AMERICAN FEDERATION OF LABOR, as the exclusive 1 epresentative of all the employees in the bar gaming unit, and WE WILL Nor in the future unilaterally change wages which substantially, affect the eniployeeS in the baiiaining unit described herein without prior consultation with the above-named union. WE WILL NOT In any manner interfere with the efforts of the above-named union to bargain with us The Dargaunng unit is • all production and maintenance employees at the Burbank, California, plant, including watchmen and janitors, truck drivers, maintenance leadmen, and production assistant supervisors, but excluding office employees, shipping clerk, maintenance foreman, production super- visors, and all other supervisory employees with authority to hire, promote, dischaige, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. THE ANDREW JERGENS COMPANY, Employer. By ------------------------------------ (Representative) (Title) Dated ------------------------ This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material.