Pecheur Lozenge Co., Inc.

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees, including the planer man,10 but excluding office and clerical employees, guards," and super- visors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] 10 As the planer man is not vested with supervisory authority , we find, in accordance with the agreement of the parties , that he is not a supervisor and shall include him in the unit. 11 Hollow Tree employes three watchmen-cleanup men who perform both guard and non- guard duties. However, the record is not clear as to the exact proportion of time devoted by each employee to these duties. If they devote more than 50 percent of their time to the performance of guard duties , they shall be excluded from the. unit ; otherwise, they are to be included . Cf. The Mountain Copper Company, Ltd, 96 NLRB 1018. PECHEUR LOZENGE CO., INC. and Luis FEALARCE, GLADYS THIRION, AGNES PIZZARELLI, ALEJANDRA RODRIGUEZ, MARY ROMAN AND DOROTHY SCHNITZER and `65' THE WHOLESALE, RETAIL AND WARE- HOUSE WORKERS UNION OF NEW YORK AND NEW JERSEY. Cases Nos. O-CA-1068 and 2-CA-1647. March 11, 19521 Decision and Order On August 20, 1951, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and (5) of the Labor Management Relations Act, as amended, and recommending that the Respondent cease and desist therefrom and take certain affirm- ative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain unfair labor practices in violation of Sec- tion 8 (a) (3) of the Act and consequently recommended dismissal of the allegation of the complaint insofar as it alleged such violation. The General Counsel, the charging parties, and the Respondent filed exceptions and supporting briefs.' The Board 2 has considered the Intermediate Report, the excep- tions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Exam- 1 The request of the charging parties for oral argument is denied , inasmuch as the record, including exceptions and briefs , adequately presents the issues and the positions of the parties. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Styles]. 98 NLRB No. 84. PECHEUR LOZENGE CO., INC. 497 finer to the extent, and with additions and modifications, indicated below.3 1. We agree with the Trial Examiner that the Respondent's refusal to meet with the Union on and after December 7, 1949, violated Sec- tion 8 (a) (1) of the Act, as alleged in the complaint. In reaching this conclusion, we rely not only upon the circumstances set forth by the Trial Examiner in the Intermediate Report, but also on the fact that the Respondent's letter of December 7, 1949, conditioned the resumption of negotiations upon the abandonment of the strike. An employer may not attach such a condition to the fulfillment of its statutory duty to bargain 4 The Respondent's conduct in conditioning further bargaining upon abandonment of protected, concerted activ- ities, constituted a refusal to bargain, and interfered with, restrained and coerced its employees in the exercise of their right to engage in such concerted strike activities, all in violation of Section 8 (a) -(1) of the Act. We further find that Respondent's conduct on December 7, 1949, as well as its refusal to recognize the Union on and after April 11, 1950, also constituted it refusal to bargain in violation of Section 8 (a), (5) of the Act.' 2. The Trial Examiner found that Respondent's refusal to rein- state the unfair labor practice strikers upon the Union's request of April 6, 1950, did not violate the Act because, in his view, the Union's request for reinstatement was not unconditional. While we agree with the Examiner that as a matter of law an unconditional request for reinstatement is an essential prerequisite to a finding of an unlawful refusal to reinstate, we cannot agree with his finding that the record fails to establish such a request. 8 We find no merit in the Respondent 's contention that Section 10 (b) of the Act precludes the Board from finding a violation of the Act based on Respondent's refusal to meet with the Union on December 7, 1949. Ferro Stamping and Manufacturing Co , 93 NLRB 1459, 1462-1463 ; Cathey Lumber Company, 86 NLRB 157, enfd . 185 F. 2d 1021 (C. A. 5), set aside on other grounds 189 F. 2d 428 (C. A. 5). This proceeding involves two consolidated cases . In Case No . 2-CA-1068, the original charge, alleging a violation of Section 8 (a) (1) and ( 3) of the Act, was filed and served on December 7, 1949. Thereafter, additional charges, alleging various acts in violation of Section 8 (a) (1) and ( 3), were filed and served on December 9 and 20, 1949 , and on July 18, 1950. The last charge also recited that by such acts and "by other acts and conduct " the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. In Case No. 2-CA-1607, a charge alleging a refusal to bargain on April 16, 1950, in violation of Section 8 (a) (1) and ( 5) of the Act, was filed and served on October 2, 1950. The complaint alleged, among other things, a refusal to bargain since November 16, 1949, in violation of Section 8 (a) (1) and a refusal to bargain since on or about April 11, 1950, in violation of Section 8 (a) (5). * Poultrymen's Service Corporation, 41 NLRB 444, 461; Kellogg Switchboard and Supply Co, 28 NLRB 847, 863; Jeffery-DeWitt Insulator Co. v. N. L. R. B., 91 F. 2d 134 (C. A 4). 5 American Newspaper Publishers Association v N. L. R. B., 193 F. 2d 782 (C. A. 7), holding that the Board is not prevented from finding a violation of a section of the Act based on conduct alleged in the complaint and litigated at the hearing merely because the complaint alleged such conduct as a violation of a different section of the Act. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union's letter of April 6 in terms stated that the request for reinstatement was "unconditional." The Trial Examiner found that this request was not sufficient because the Union did-not disclose to the Respondent that the production employees had abandoned their insist- ence on the elimination of overtime. It was sufficient, however, in our opinion that the Union specifically stated that the demand for rein- statement was unconditional. It was not incumbent upon the Union to go further and to spell out the plain intendment of the word "uncon- ditional" by stating that this meant that the employees were abandon- ing their prior request for the elimination of overtime. The Respond- ent had no reason to believe, and there is no evidence that it did believe, that the request for unconditional reinstatement was subject to any unexpressed reservations. In its reply to the Union's letter of April 6 the Respondent did not request clarification of the Union's request for reinstatement, but asserted only that it had in the past offered rein- statement to its employees and, questioned the Union's good faith in demanding reinstatement while continuing its strike activities. We find therefore that on April 6, 1950, the Union made a proper uncon- ditional request for the reinstatement of the unfair labor practice strikers. The Trial Examiner also found that there was no evidence that the new employees hired after April 6, 1950, were given jobs which the old employees were qualified to fill. We are unable to perceive the relevancy of this finding to the Respondent's obligation to reinstate the unfair labor practice strikers upon their unconditional request on April 6, 1950. The Examiner found, and we agree, that the strike was converted to an unfair labor practice strike on December 7, 1949, when the Respondent unlawfully refused to meet with the Union. That being so, under well-established Board and court precedents, the Respondent's right to make replacements became vulnerable from that date and the Respondent was obligated to reinstate the strikers, displacing if necessary all those hired after December 7, 1949.6 As it failed to discharge this obligation, we find that the Respondent vio- lated Section 8 (a) (3) and (1) of the Act. However, we do not in any event agree with the Trial Examiner's apparent conclusion that the burden was upon the General Counsel to show affirmatively that the strikers were qualified to fill the positions for which new employees were hired after April 6, 1950. It is clear from the record that the striking employees were divided into two categories-wrappers and production workers, and that the jobs in the production department were generally interchangeable. It does not appear that the work of the wrappers required any special skills or 6 In its answer to the complaint the Respondent concedes that replacements for strikers were hired after December 7, 1949. PECHEUR LOZENGE CO., INC. 499 any skills which were not shared by all the wrappers. On this state of the record, the burden was on the Respondent to prove affirmatively by way of defense that the strikers were not qualified to perform the work of the replacements. Yet there is no evidence, and the Respond- ent does not even assert, that none of the striking employees was qualified to fill any of the jobs given to the 33 new female employees and 55 new male employees hired by the Respondent between April 6, and December 31, 1950. We therefore conclude and find that the strikers were qualified to fill the jobs given to replacements hired after April 6,1950. 3. We agree with the Trial Examiner that the Respondent's inter- rogation of its employees concerning their union membership, even if standing in isolation, is per se a violation of Section 8 (a) (1) of the Act. However, we do not view such interrogation as standing in isolation in view of our findings of violations of Section 8 (a) (1), (3), and (5) of the Act. The Remedy We have found, in agreement with the Trial Examiner, that the strike, which began as an economic strike on December 2, 1949, was converted into an unfair labor practice strike on December 7, 1949. We have also found that the Respondent' s refusal to reemploy the strikers on April 6, 1950, when they unconditionally applied for re- instatement, was discriminatory and violative of Section 8 (a) (1) and (3) of the Act. We shall therefore order the Respondent, insofar is it has not already done so, to offer to those employees who were on strike on April 6, 1950, immediate and full reinstatement to their former or substantially equivalent positions,' dismissing, if necessary, any employees hired since December 7, 1949, to replace them. If, after such dismissal, there are not enough positions remaining for all these employees, the available positions shall be distributed among them, without discrimination because of their union membership, activity, or participation in the strike, following such system of seniority or other nondiscriminatory practice as heretofore has been applied in the conduct of the Respondent's business. Those strikers 7 See The Chase National Bank of the City of New York, San Juan, Porto Rico, Branch, 65 NLRB 827. Any unsolicited offers of reemployment made by the Respondent before April 6, 1950, while the employees were still on strike, did not, in our opinion, discharge the Respondent's duty to offer reinstatement to the strikers . Such offers were mere soliciations to abandon the strike before the employees had unconditionally indicated their willingness to do so, through the Union's letter of April 6. This conclusion applies likewise to the 24 laid -off wrappers who, as the Trial Examiner found , after accepting reemployment for a few days during the first 2 weeks of the strike, thereatter joined the strikers If still on strike on April 6, they were entitled to reinstate- ment on that date to the came extent ac the other strikers , as well as to compensation for any loss of pay suffered as a result of the discriminatory refusal to reinstate the strikers 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for whom no employment is immediately available after such dis- tribution, shall be placed upon a preferential hiring list, priority among them being determined by such system of seniority or other nondiscriminatory practice as has heretofore been applied in the con- duct of the Respondent's business, and they shall thereafter, in accord- ance with such list, be offered reinstatement as positions become avail- able and before other persons are hired for such work. Reinstate- ment, as provided herein, shall be without prejudice to the employees' seniority or other rights and privileges. We shall also order the Respondent to reimburse these employees for any loss of pay they may have suffered by reason of the Respond- ent's discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the periods (a) from April 6, 1950, the date of the Respondent's refusal to reinstate them upon their unconditional application, to the date of the Intermediate Report herein, and, (b) from the date of this Decision and Order to the date of the Respond- ent's offer of reinstatement," or placement on a preferential hiring list in the manner hereinabove described, less his net earnings during said periods.9 Such loss of pay shall be computed on the basis of separate calendar quarters, in accordance with the policy enunciated in the Woolworth case io We shall also order the Respondent to make available to the Board, upon request, payroll and other records necessary to facilitate the determination of the amount of back pay due." We have found that the Respondent violated Section 8 (a) (1), 3), and (5) of the Act. In our opinion, the commission of unfair labor practices generally is reasonably to be anticipated from this unlawful conduct in the past. We shall therefore order the Respond- ent to cease and desist, not only from the unfair labor practices herein found, but also from in any other manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, the Board makes the following additional : Conclusions of Law 1. By refusing to reinstate the unfair labor practice strikers upon the Union's unconditional request for reinstatement, the Respondent discriminated in regard to the hire and tenure of employment of such s When, as here, the Board , contrary to the Trial Examiner, orders reinstatement of employees, back pay is normally abated from the date of the Intermediate Report to the date of the Board's Decision and Order The Jackson Press, Inc., 96 NLRB 897. 0 See Crossett Lumber Company, 8 NLRB 440 10 F. W Woolworth Company, 90 NLRB 289. u F. W Woolworth Company, supra. PECHEUR LOZENGE CO., INC. 501 employees, thereby discouraging membership in `65' The Wholesale, Retail and Warehouse Workers Union of New York and New Jersey, in violation of Section 8 (a) (3) and (1) of the Act. 2. The aforesaid unfair labor practice is one affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 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, Pecheur Lozenge Co. Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Questioning employees concerning their union membership or nonmembership. (b) Refusing, upon request, to bargain collectively with '65' The Wholesale, Retail and Warehouse Workers Union- of New York and New Jersey as the exclusive representative of its employees in the following appropriate unit : All employees at the Respondent's plant, excluding office and clerical employees, sales employees, chauffeurs, guards, and supervisors. (c) Discouraging membership in the above-named, or any other, labor organization, by refusing to reinstate any of its employees because of their union membership or activity, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. (d) 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 the above-named, or any other, labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, is authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with `65' The Wholesale, Retail and Warehouse Workers Union of New York and New Jersey as the exclusive representative of all its employees in the above- described unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. 998666-vol. 98-53-33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Insofar as it has not already done so, offer the employees who were on strike on April 6, 1950, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, or place them on a preferential hiring list, in the manner set forth in "The Remedy" section of this decision, and make them whole for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, in the manner set forth in "The Remedy" section of this decision. (c) Upon request, make available to the National Labor Relations Board or its agents, for examination and copying all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (d) Post at its plant in Brooklyn, New York, copies of the notice attached hereto and marked "Appendix A." '2 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent, be posted by it 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 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. (e) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is rURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that on or about December 2, 1949, the Respondent laid off employees in violation of Section 8 (a) (3) and (1) of the Act. 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, we hereby notify our employees that : WE WILL NOT question our employees concerning their union membership or nonmebership. WE WILL NOT refuse, upon request, to bargain collectively with `65' THE WHOLESALE, RETAIL AND WAREHOUSE WORKERS UNION OF NEW YORK AND NEW JERSEY as the exclusive reperesentative of 12 In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words : "Pursuant to a Decision and Order" the words : "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." PECHEUR LOZENGE CO., INC. 503 all employees at our plant, excluding office and clerical employees, sales employees, chauffeurs, guards, and supervisors. WE WILL NOT discourage membership in the above-named, or any other labor organization, by refusing to reinstate any of our employees because of their union membership or activity, or in any other manner discriminate in regard to their hire or tenure of employment, or any term or condition of their employment. WE WILL not in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist the above-named organization, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such rights may be affected by an agreement rquiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL bargain collectively upon request with `65' THE WHOLESALE, RETAIL AND WAREHOUSE WORKERS UNION OF NEW YORK AND NEW JERSEY, as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, hours of employment, or other conditions of employ- ment, and if an understanding is reached, embody such under- standing in a written and signed agreement. The bargaining unit is : All employees employed at our plant, exclusive of office and clerical employees, sales employees, chauffeurs, guards, and supervisors. WE WILL, insofar as we have not already done so, offer to all our employees who were on strike on April 6, 1950, immediate and full reinstatement to their former or substantially equivalent positions, displacing, if necessary, any new employees hired after December 7, 1949, to replace them. If, after such displacement, there are not enough positions remaining for all such employees, the available positions shall be distributed among them in accord- ance with such system of seniority or other nondiscriminatory practice as heretofore has been applied in the conduct of our business. Such of those employees for whom no employment is immediately available shall be placed upon a preferential hiring list, priority on such list being determined by such system of seniority or other nondiscriminatory practice as has been here- tofore applied in the conduct of our business, and, thereafter, such employees will be offered reinstatement, in accordance with such 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD list, as positions become available, and before other persons are hired for such work. Such reinstatement will be without prejudice to the employees' seniority and other rights and privileges. WE WILL make our employees whole for any loss of pay they may have suffered as a result of our discriminatory refusal to rehire any of them on April 6, 1950. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization , except to the extent that such rights may be affected by an agreement requir- ing membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. We will not discrim- inate in regard to hire or tenure of employment, or any term or condi- tion of employment, against any employee because of membership in or activity on behalf of any labor organization. PECHEUR LOZENGE Co., INC. 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 and Recommended Order STATEMENT OF THE CASE On various dates from December 6, 1949, to September 28, 1950, charges of violation of Section 8 (a) (1), (3), and (5) of the National Labor Relations Act, 61 Stat. 136, were filed by or on behalf of the individuals and labor organizations enumerated in the above caption, against Pecheur Lozenge Co., Inc., of Brooklyn, New York. Upon these charges the General Counsel of the National Labor Relations Board caused his complaint, dated May 1, 1951, to be issued alleging the commission by the Company of the aforesaid unfair labor practices. Copies of the charges, complaint, and notice of hearing were duly served upon the Company, the labor organization, and the other charging parties. With respect to the unfair labor practices the complaint alleged in sub- stance that (1) on or about December 2, 1949, the Company, in violation of Section 8 (a) (1) and (3) of the Act, laid off a group of employees because they had joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ; (2) on or about the same date, as a consequence of the asserted unfair labor practices, the employees of the Company ceased work concertedly and went on strike; (3) on or about December 7, 1949, and again on or about April 6, 1950, the employees applied unconditionally for reinstatement to their former or substantially equivalent positions and were refused; (4) on or about April 11, 1950, the Company refused and continues to refuse to bargain collectively with '65', the labor organization, although '65' was then and is now the exclusive PECHEUR LOZENGE CO., INC. 505 bargaining representative of the Company's employees within the meaning of the Act; (5) from on or about November 19, 1949, to date, the Company has interrogated employees concerning their union affiliations ; has warned employees to refrain from assisting, becoming, or remaining members of the Union; has threatened employees with discharge or other reprisals if they joined or assisted the Union ; and since November 16, 1949, has refused the Union's request to bargain collectively as the exclusive representative of all the employees in an appropriate unit. An answer denying the unfair labor practice allegation was duly filed by the Company. A hearing was held in New York, New York, from June 11 to June 15, 1951, inclusive, before the undersigned Trial Examiner. All parties were represented by counsel, participated in the hearing, and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue the issues orally upon the record and to file briefs and proposed findings. On July 13, 1951, the General Counsel and the Com- pany filed a stipulation of fact dated June 29, 1951, which is hereby approved and directed to be made a part of the record. A brief and proposed findings were received from the Company on July 12, 1951. During the course of the hearing various motions were made by the Company to dismiss the complaint on the merits. These motions, where not denied or granted at the hearing, are disposed of by the following findings and recom- mendations. At the close of the General Counsel's case the allegations in the complaint to the effect that the Company had warned its employees to refrain from assisting, becoming, or remaining members of the Union and had threat- ened employees with discharge or other reprisals if they joined or assisted the Union were dismissed by the undersigned, over objection by the General Counsel, on the ground that the General Counsel had not made out a prima facie case to support such allegations. Among other procedural contentions raised by the Company at the hearing is one to the effect that Local 65 is a Communist organization and that the com- plaint should therefore be dismissed, or should not have been issued. The Respondent offered in evidence various documentary material designed to support its contention and sought to cross-examine witnesses concerning its allegations of Communist influence. The Board's compliance records, however, establish that Local 65 was in compliance with Section 9 (f), (g), and (h) of the statute at all times pertinent herein. The question as to Communist influence in labor organizations and the remedy therefor was met by Congress in the provisions contained in the aforesaid section of the Act. As the Board has in effect noted, those provisions constitute the full extent of the authority entrusted by Con- gress to the Board in the matter of eradicating Communist or subversive influ- ences from labor organizations, and that, although the Board will itself determine administratively whether there has been compliance with the statute the truth or falsity of the non-Communist affidavits is not a litigable issue in a Board proceeding.' This conclusion and interpretation of the Act has received the apparent approval of the Joint Committee on Labor Management Relations established by the Congress pursuant to the Labor-Management Rela- tions Act of 1947. That Committee, after a study of the Board's administration of Section 9 (f), (g), and (h) of the Act, stated the following, in part, with regard to the affidavit question : The Committee wishes to emphasize as strongly as possible that in any con- sideration of amendments to this section, great care must be given to prevent % Stewart-Warner Corporation, 94 NLRB 607 ; Sunbeam Corporation, 94 NLRB 844, 98 NLRB 1205 ; New Jersey Carpet Mills, 92 NLRB 604. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD litigation of the question in Board hearings. If the parties to Board hearings are permitted to question the veracity of the affidavit, or the fact as to it having been filed, records will be hopelessly overburdened with such proof. Board hearings must be confined to evidence going into merits of the case at hand if the Board is to carry out its real function of deciding unfair labor practice cases and determining bargaining represen- tatives. The Board recognized this principle in Lion Oil Co. (15-R-2264) when it upheld the ruling of the hearing officer in his denial of the em ployer's motion to dismiss the petition since the record did not show the petitioning union had complied with the requirements of Section 9 (f) and (h). The Board said that compliance is clearly for the Board to determine and its official records indicated that the union had complied.' ( Emphasis supplied.) It seems apparent from this comment, as well as from the legislative history of the section, that the Congress intended that the question of a union's compli- ance with Section 9 (f), (g), and (h) of the statute was not to be collaterally attacked, and that the Board is not to determine the veracity or the truth of the non-Communist affidavits filed by a union in compliance with the statute. But even if the Union were incompetent to pursue charges before the Board, individual employees are not disabled thereby from filing and pressing charges of interference and discrimination on their own behalf, as they have done here ; even if the Union assisted them in so doing. N. L. R. B. v. Luzerne Hide & Tallow Co., 188 F. 2d 439 (C. A. 3) ; N. L. R. B. v. Augusta Chemical Co., 187 F. 2d 63 (C. A. 5). Upon the entire record in the case, and from observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Pecheur Lozenge Co., Inc., is a New York corporation maintaining its principal office, plant, and place of business in Brooklyn, New York, where it is engaged in the manufacture, sale, and distribution of candy, lozenges, and related products. During the year 1949, in the course and conduct of its business operations, the Company caused to be purchased, transferred,. and delivered to Its Brooklyn plant sugar, flavors, cartons, and other materials valued in the excess of $250,000, of which approximately 25 percent was transported to said plant in interstate commerce from States of the United States other than the State of New York. During the year 1949, in the course and conduct of its business operations, the Company caused to be manufactured at its said plant products valued in excess of $500,000, of which approximately 66 percent was transported from said plant in interstate commerce to States of the United States other than the State of New York. II. THE LABOR ORGANIZATION INVOLVED '65' The Wholesale, Retail and Warehouse Workers Union of New York and New Jersey is a labor organization within the meaning of Section 2 (5) of the Act. 2 Report of the Joint Committee on Labor Management Relations, 80th Congress, 2d Session, December 31, 1948, Report No. 986, Part III, p. 45; and see N. L. R. B. v. Ann Arbor Press. 188 F. 2d 917 (C. A. 6). PECHEUR LOZENGE CO., INC. III. THE UNFAIR LABOR PRACTICES A. The facts 1. The background 507 A proper understanding of the issues and the evidence requires some prelimi- nary description of the business and operations of the Company. The Company manufactures and sells candy, some of which is wrapped by the Company in individual consumer packages. The remainder is sold in bulk. After being manufactured by production or manufacturing employees, that candy which is to be individually packaged is transmitted to a corps of employees known as wrappers or packers, who place it in the packages. The Company has a trade name, Peco, which appears on all its wrapped products. Illustrative of the type of candy packaged by the wrappers are sugar wafers, candy cigarettes, peppermints, and candy hearts for use during the Valentine season. Only a small portion of the Valentine hearts, however, are packaged. These are sold mainly in bulk and are not handled by the wrappers. The Valentine season, beginning in the late summer or late fall and running until February, is the Com- pany's busiest period. During such time the Company produces mainly bulk hearts. Various operational factors require overtime work by the production employees during the Valentine season. This is a circumstance of which all employees seem to be informed when hired. The policy has been one of many years' standing. Its existence is probably best illustrated by the following notice posted by the Company on the plant bulletin board on September 5, 1949, several months before the events which gave rise to the instant charges. Notice Beginning Wednesday, September 7, 1949, there will be regular overtime required of every employee in this department. [Production department.] At the start the overtime required will be one hour each day-varying upward and including Saturday as we approach our busy season. If any man in this department for any reason does not want overtime work, we ask that he look around for other employment as we will be obliged to discharge any person who refuses for any reason to work when overtime is necessary. As you all know we kept you all on for full days each and every week during the spring and early summer when our business was very slow. Many other companies while going through their dull period either discharged or laid off their employees. We did not do this but made work around the factory for you all. Our busy time is when we are making candy hearts for the coming Valentine season, and it's the busy season that helps keep us going during the dull season and we must ask you all to work with us during our busy months if you want us to again remember you all when our dull months come around. Any men who do not want to work overtime please arrange with your foreman to have a talk with us. Thank you. PECHEUR LOZENGE CO., INC. In November and December 1949, when the events with which we arP here concerned occurred, the Company was in the midst of the heart season. It then employed some 70 wrappers and 30 production employees. The former are 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all female, the latter all male employees. At that time the full regular hour services of the production department, without overtime, were required merely to turn out enough Valentine hearts to fill current heart orders. These being mainly in bulk they provided no work for the wrappers. With overtime, how- ever, the production department was enabled to produce enough candies for wrapping to keep wrappers working. Cessation of overtime during the Valentine season would therefore entail either or both of the following consequences: (1) A layoff of some or all of the wrappers, or (2) a reduction in the production of bulk hearts. It is operationally more feasible and efficient to operate on an overtime basis during the Valentine season than to purchase additional production machinery, for the reason that the additional machines would lie idle during nonbusy periods. During the slack season production and wrapping is directed to the. filling of incoming orders and the building of inventories. Generally the Com- pany maintains steady employment without layoffs during the dull season. While, ordinarily, some of the wrapping is by machine, during the height of the Valentine season machine wrapping is discontinued in order to provide employment for the wrappers, and all wrapping at that time is done by hand.: The principal persons adverted to in the following findings are : Mrs. Irene Pecheur, company president ; Mrs. Esther Letz, union representative ; Alfred J. L'Leureux, company attorney ; Mario Abreu and John Mongello, union organizers ; Leopold Balleisen, industrial relations consultant for the Company ; Max Badillo, employee and chairman of the Union's shop committee ; Victor Rabinowitz, union attorney ; Robert Thatcher, company vice president ; Anthony Bartulis, foreman of the production department ; and Sadie Claro, forelady in the wrapping department. 2. The demand for recognition Sometime in the fall of 1949 the substantial majority of the Company's approximately 100 employees signed cards authorizing the Union to be their collective bargaining representative. On November 14, 1949, Mrs Esther Letz, then area director for the Union in charge of the Brooklyn Division, accompanied by Mario Abreu and John Mongello, union organizers, called on Mrs. Pecheur at the plant. Mrs. Letz told Mrs. Pecheur that the Union represented a majority of the employees and would like to discuss a collective bargaining contract. There is little dispute as to the substance of the conversation. The organizers were courteous and pleasant and were courteously and pleasantly received. Mrs. Pecheur asked the union representatives to call back in an hour, to which they agreed. When they returned Mrs. Pecheur informed them that she had arranged an appoint- ment for the following day with her lawyer, Alfred J. L'Heureux, at which both she and the union representatives would be present. On the following day, November 15, Mrs. Letz, Abreu, and Mongello met with Mrs. Pecheur and L'Heureux at the latter's offices. This meeting like the first, was a pleasant one. Mrs. Letz assured Mrs. Pecheur that the Union would not interfere with the conduct of the business. She said that the Union wished to avoid dispute and that it would bargain fairly. Mrs. Pecheur and L'Heureux stated that the Company would wish to be assured or satisfied that the Union represented a majority and if that were established there would be no problem. Mrs. Letz said that the Union had not complied with Section 9 (h) of the National Labor Relations Act and could not use the NLRB, but that 8 The findings in this subsection are based mainly on testimony by Mrs. Irene Pecheur, company president, Robert Thatcher, its vice president , and stipulated facts. PECHEUR LOZENGE CO., INC. 509 steps were being taken to bring the Union into compliance with the Act and that this would be completed soon. L'Heureux asked Mrs. Letz for the names of the officers of the Union and she gave them. During the discussion Mrs. Letz suggested that an election be held under the supervision of a priest. Mrs. Pecheur and L'Heureux said that that would not be necessary : that Mrs. Pecheur and Mrs. Letz could conduct an election, and it was finally so agreed. 3. The election and the recognition The election was held in the plant on the following day, November 16, 1949. The Company prepared a list of eligible voters and as employees presented themselves to vote their names were checked by observers against this eligilibity list. The election was by secret ballot, printed in both Spanish and English, directing the employee to mark an X in one of two boxes for or against the Union. The ballots were counted by union and company repre- sentatives. Of 101 valid votes tabulated, 93 were found to have been cast for the union and 8 against. Following the counting of the ballots the following recognition agreement was signed by Mrs. Pecheur on behalf of the Company and Mrs. Letz on behalf of the Union : November 16, 1949 This is to certify that an election took place this day on the premises of Pechuer Lozenge wtth the resulting vote of 93 for Local 65 and 8 against the Union. The Union agrees that it represents all of the employees with the exception of office and supervisory employees, and chauffeur. As a result of said election the Company agrees to recognize this Union as the sole collective bargaining agent and to meet to discuss the terms of a collective bargaining agreement. Just prior to the election Mrs. Pecheur gave a talk to the assembled employees, later repeated in Spanish, in which she frankly told the employees that she felt it would be to their best interests to vote "no" in the election ; that she pre- ferred not to have a union and explained why. But she further said that if the employees voted for a union," I hope it will be the Local 65 that is now in the picture as I think Mrs. Letz will be a fair person to deal with." Again she said "as to the advantages to you if you join a union that is not for me to discuss. If you vote for a union they will make certain proposals to me-and I hope they will be reasonable so I will be able to meet them-and we will negotiate with the Uniion in good faith on all their proposals." She also assured the employees that whatever the result it would have no adverse effect on the relations between the employees and the Company : "Whether or not you join the Union our relations will remain the same and the fact that you do not join the Union will not have any effect upon your right to hold your job or upon your chance of getting a better job. If anyone has told you otherwise it is not true." In sum, the address constituted, in my judgment, a moderate, reasoned, and fair statement of Mrs. Pecheur's grounds for urging the employees not to choose the Union ; and in the existent context constituted no more than a temperate expression of view, argument, or opinion which she was privileged to make under Section 8 (c) of the statute. 4. The negotiations (a) The November 22 meeting A meeting for the negotiation of a contract was arranged for November 22, 1949, at the office of L'Heureux. Prior to November 22, however, Mrs. Pecheur 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied the request of the Union that Max Badillo, chairman of the Union's shop committee, be permitted to attend the conference. Badillo was very active in the Union. The evidence does not disclose what, if any, grounds were advanced by Mrs. Pecheur as reason for her action. As a consequence Badillo was not present at the November 22 conference, Mrs. Letz testifying that the Union agreed not to have him present. At a later conference, however, Badillo was present, the Union insisting and Mrs. Pecheur acquiescing. Mrs. Pecheur and Attorney L'Heureux represented the Company at the November 22 meeting. The Union was represented by Mrs. Letz, Abreu, Mon- gello, and three employees. Mrs. Letz' testimony is that at this conference either Mrs. Pecheur or L'Heureux asked the names of each officer of the Union, and that she gave the information with the comment that she thought that they had come for the purpose of negotiations. According to Mrs. Letz and Abreu, Mrs. Pecheur's "attitude" seemed to have changed since their last meeting, and she and L'Heureux seemed "hesitant." Mrs Pecheur said, according to Mrs. Letz, that she had never had a union before; that it was a "tremendous" step to take, and so important that she felt that it would be necessary to call in a labor relations man, because neither she nor L'Heureux were experienced in the field. Abreu's added testi- mony is that Mrs. Pecheur said that she was a "little afraid of having a union boss," and that she did not think that the employees needed a union. At this meeting the Union presented a form contract, but the form did not indicate, and the union representatives apparently did not disclose-nor seem to have been asked-what their wage demands would be. The union repre- sentatives went through each clause of the contract and explained them. Mrs. Pecheur stated that the clauses seemed simple and clear. Mrs. Letz gave Mrs. Pecheur references to firms with whom the Union had contracts, another conference was arranged for November 29, and the meeting terminated without other apparent agreement of any kind. (b) Mrs. Pechcur consults Balleisen On November 28, 1949, Mrs. Pecheur consulted Leopold L. Balleisen, an indus- trial relations consultant, for advice in dealing with the Union. Balleisen questioned her as to why she had consented to an election when the Union was not in compliance with the Act and could not have gotten a Board election. Mrs. Pecheur responded that she did not care that the Union was not in compliance so long as the employees wanted it, and stated that she was willing to bargain with it. Balleisen informed her that the Union was "known as one of the most pro-communistic unions in the country and very militant." Mrs. Pecheur was, as Balleisen put it, "taken a little back" by this statement, but nevertheless said that "that would make no difference to her, so that she could get someone to advise her as to getting the proper contract under which she could live, that would make no difference." Balleisen then told Mrs. Pecheur that it would be advisable to get the Union's wage proposals in order to have all their demands before her, and asked how far she was willing to go on "money"; Mrs. Pecheur replying that she would not know until she had gotten the statement of her account for the fiscal year, which would be sometime after the beginning of the new year. She also told Balleisen that she did not want a strike or a slowdown because the Company was in the midst of its busy season. On the following day, November 29, and also on November 30, Mrs. Pecheur consulted Balleisen, presumably for advice, but the record does not disclose the extent of their conversations.' 4 The findings in this subsection are based on Balleisen's testimony. PECHEUR LOZENGE CO., INC. 511 (c) The November 29 meeting On November 29, 1949, the parties met again at L'Heureux's office. Little was accomplished. Mrs. Pecheur stated, in substance, that she was not prepared to proceed with negotiations until she had the Union's "money" demands, had an opportunity to study the contract thoroughly, "line be line," received her accountant's statement as to the fiscal position of the Company, and had retained a labor relations man.. As to when she indicated that the accountant's statement would be available, Mrs. Pecheur's testimony was vague.' This statement, to quote Mrs. Pecheur, "disturbed" Mrs. Letz, who said that the employees were in a state of unrest, felt that there was a "speedup," and that the Company was "not sincere about a contract." Mrs. Letz urged that specific rates be set for subsequent meetings to quiet that apprehension, sug- gesting that one meeting be arranged for the following day with the labor relations consultant, and another with the accountant the day after that. In addition the Union pointed out that there were a number of negotiable subjects, such as grievance and arbitration procedure and others, which did not involve money. Mrs.•Pecheur responded that the most important thing in the contract was "money" and that she could not discuss that without a financial statement. Mrs. Pecheur's uncontroverted testimony is that she asked the Union for its wage demands, receiving only the response that they would not be "'excessive." During the discussion Mrs. Pecheur informed Mrs. Letz that some employees had left the plant early on the preceding day, November 28, and that she "had heard" that the employees proposed to discontinue working overtime. Mrs. Letz denied any knowledge of this development, adding that overtime would not be necessary if the Company "worked with" the Union. Mrs. Pecheur replied that overtime would always be needed. The atmosphere at this meeting does not appear to have been as cordial as previously. The company representatives told the Union that "some of the things you told us [aren't] exactly so." The conference broke up without any apparent agreement of any kind, and with no evident indication as to when negotiations would be resumed.' 5. The overtime issue The Company's overtime policy apparently did not meet with the approval of some of the Company's employees. Most active in his dislike for overtime appears to have been Max Badillo. Badillo, hired in August 1949, began, ac- cording to Foreman Anthony Bartulis, to express his satisfaction with overtime a month and a half later, presumably shortly after the appearance of the Sep- tember 5, 1949, bulletin, which has been adverted to heretofore. Various inci- dents recited in the record suggest that Badillo became a person of influence among the employees, and came to be so regarded by the Company. During the early part of the week beginning Monday, November 28, 1949, the Union's shop committee met and-according to the testimony of Badillo, Mrs. Letz, and Abreu, without the knowledge of the Union, the committee decided to discontinue overtime production work. On Tuesday, November 29, Badillo Informed Foreman Bartulis of that decision, Bartulis responding that he would 6 She testified that she thought that she indicated "around income tax time, or February 1, or later" ; that it was "indefinite," she hadn't "made inquiries," and that she "would have to find out when [she ] could get it." Letz' testimony is that Mrs . Pecheur stated that the accountant was already at work and that negotiations could resume "in a few days." Abreu's testimony, specifically denied by Mrs. Pecheur, is that the latter said that she would have the statement by December 2. The actual fact does not appear to be of critical importance. 6 The findings in this subsection are based upon the testimony of Mrs. Pecheur, Mrs. Letz, and Abreu. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD see Mrs. Pecheur. Later in the afternoon Bartulis told Badillo that the men could go home at 4: 30 that night. However, several employees, those who did not join the Union, remained to work overtime on that day. On the following day Bartulis again informed Badillo that the men would not have to work overtime. Again the nonunion men remained and worked. In sum, except for the few nonunion employees who continued it, overtime by the production employees substantially ceased beginning November 29, 1949; and even that which was continued was nonproductive in nature : cleaning and preparing equipment for the following day's operations. The result was a substantial drop in production. 6. November 30, 1949 (a) Letz' conversation with L'Heureur There were no further bargaining conferences after November 29. On the following day, November 30, Mrs. Letz telephoned Attorney L'Heureux. She told him that the employees were in a state of unrest, that they had reported that they were being rushed and that the Company was preparing for a strike, that they wished to eliminate overtime, that some employees were urging strike action, and that while the Union was attempting to "hold" the employees, the Company would have to help. Mrs Letz then asked for a bargaining conference before Saturday afternoon-at which time a union meeting was scheduled. In addition she related a number of specific grievances concerning which employees had complained. Attorney L'Heureux replied that Mrs. Pecheur had said that there was no reason for further conferences since the employees would not work overtime, and that that action was an indication of bad faith on the Union's part Mrs. Letz responded that that was not the policy of the Union, and said that she would call Mrs. Pecheur and inform her that the Union would straighten out the matter. (b) Mrs. Pecheur's conversation with Badillo Attorney L'Heureux reported this conversation to Mrs. Pecheur.' She there- upon sought out Max Badillo in the plant and discussed the question of overtime and the various grievances raised by Mrs. Letz 8 Badillo told Mrs. Pecheur that the Union had stated that the Company was planning for a strike and piling up goods. Mrs. Pecheur denied that that was the fact, explained that overtime was customary at that time of the year, and urged him to make inquiries among the older employees to satisfy himself. Badillo finally told Mrs. Pecheur that there was to be a union meeting'that night about the overtime question, and that he would let Mrs. Pecheur know the decision on the following morning. In that con- versation Mrs. Pecheur told Badillo that if the production employees did not work overtime, it would be necessary to lay off 30 wrappers. 7. December 1, 1949 (a) Mrs. Pecheur retains BaUeisen On the morning of Thursday, December 1, according to Mrs. Pecheur, Badillo informed her that the Union still thought that the company was building up 4 From this point on, up to the evening of December 1, the testimony is confused as to the exact sequence and time of events. Though Mrs. Pecheur and Balleisen were positive as to dates and times of the following incidents , and Mrs. Letz unsure as to some, the testimony of none of them is completely reconcilable . The following sequence represents my reconstruction of the probable order of occurrences. There is no confusion , however, as to the fact of the events-but only as to their chronology. 8 Badillo at first denied, but subsequently said that he did not remember , speaking to Mrs. Pecheur about overtime. PECHEUR LOZENGE CO., INC. 513 stocks in preparation for a strike, and that the men would not resume overtime. Mrs. Pecheur then consulted Balleisen, informed him of these developments, and retained him. She told Balleisen that she could not have a strike because this was her busy season, and said that she would have to "give in." Balleisen advised her to inform Mrs. Letz that unless overtime continued it would be necessary to lay off employees. He discounted Mrs. Pecheur's apprehension that a strike might result, giving as reasons that the Union would conclude from firm action that Mrs. Pecheur had "some backbone" and that a strike near the Christmas holidays was unlikely. Mrs. Pecheur suggested that Balleisen speak to Mrs. Letz, but he advised his remaining in the back- ground, saying that because of his previous "tussles" with the Union, his participation might be used as an excuse for striking. He also told Mrs. Pecheur to get the Union's wage demands and he would prepare an outline of arguments and suggestions as to revisions of the proposed contract clauses ; and the meeting apparently terminated on that note. (b) The Company acquiesces to the discontinuance of overtime On the same day, and presumably immediately after her consultation with Balleisen. Mrs. Pecheur typed out a notice to the production employees which, in sum, indicated her acquiescence to the discontinuance of overtime. She then sought out Badillo and had him accompany her while she posted the notice in the men's room. At the same time she told Badillo that the notice would mean the layoff of 30 girls, but Badillo made no comment. (c) Mrs. Letz' conversation with Mrs. Pecheur Around 5 or 5: 30 p. in. of that day, December 1, Mrs. Pecheur had a tele- phone conversation with Mrs. Letz, who told Mrs. Pecheur that Attorney L'Heureux had said that Mrs. Pecheur did not want to meet because the employees had refused to work overtime. Mrs. Pecheur said that because of the cessation of overtime a number of people (8 or 10 according to Letz' testimony, 30 according to Pecheur's) would have to be laid off. Mrs. Letz urged Mrs. Pecheur not to effect any layoffs. She said that the action of the employees was without the knowledge or consent of the Union and was not its policy; that a shop committee meeting was scheduled for that night, and that she was confident that as a result of that meeting the overtime would be resumed. Mrs. Pecheur responded that it was too late now to avoid the layoffs, but that the employees would be recalled as soon as possible. Mrs. Pecheur's testimony is that she said, in part : I said it was too late to try now, that they were already not working over- time. We had already lost those hours and we have to think of the Company and we will have to lay off the girls. She said, "Please don't do it. I will try and see if I can't get it back." The conversation terminated with an agreement that Mrs. Letz would call Mrs. Pecheur at 10 the next morning to tell her, as Mrs. Letz put it, "What our answer was on the question of overtime." (d) Balleisen advises layoffs Around 6 : 30 or 7 p. in. Mrs. Pecheur telephoned Balleisen at his home and reported her phone conversation with Mrs. Letz. Balleisen told her that in his opinion Mrs. Letz was "merely kidding" Mrs. Pecheur ; the employees The findings in this subsection are based on the testimony of Mrs. Letz, Mrs. Pecheur, and Vice-President Thatcher. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were not objecting to overtime: it was the Union's way of putting economic pressure on her. He then advised Mrs. Pecheur to lay off wrappers ; but in strict order of seniority, so that she could -not be accused of "ulterior motives." 10 (e) The shop committee votes to resume overtime On the same evening, December 1, Mrs. Letz and Abreu met with the shop committee. Mrs. Letz told the committee that the Union did not wish to provoke a situation, and asked the committee to revoke its action in discontinuing overtime. Some members objected, but after discussion the committee voted to resume overtime, and instructed Mrs. Letz to notify Mrs. Pecheur to that effect on the following morning." 8. December 2: The layoffs and the strike Mrs. Pecheur, however, was not informed on the following morning of the shop committee's reversal of its decision not to work overtime. In fact, she seems never to have been informed of it. Mrs. Letz' testimony is that at 10 a. in. on December 2 she phoned Mrs. Pecheur to convey the information to her but was told that Mrs. Pecheur was in conference and could not be reached. Mrs. Letz testified that she left her number but never got a return call. Shortly before noon on December 2, 1949, the Company laid off 30 of its wrappers pursuant to the following posted notice : NOTICE TO WOMEN IN WRAPPING DEPARTMENT Contrary to their earlier promises to us to work overtime the men in the manufacturing department have decided on Thursday, December 1, 1949, to work an 8-hour day and a 40-hour week, and have given us no advance notice of this, the carefully prepared plans of the Company have been inter- fered with and the work for which you were hired Is no longer available. We now find it necessary to lay off. Although we are not obliged to do so we have made these layoffs according to seniority, beginning with those last hired on November 14, 1949, back up through September 20, 1949. This is the first time in many many years that we have laid off any of our employees, as it has always been our aim to give steady employment to all we hire. We are sorry to have to do this at this season of the year but this has been brought about thru no fault of the Company. We will write you when we have work for you again. Please keep us in- formed of any changes in your address. At noon, December 2, 1949, the following are laid off : - The notice then listed the names of the 30 employees laid off. When this notice was posted, and the news became known, the remainder of the employees, consisting of some 30 production workers and 40 wrappers, im- mediately walked out of the plant on strike. ' The December payroll record in- dicates that substantially all the employees joined the strike. Except for some shouting the walkout was orderly. The testimony of Union Organizer Abren Is that the strike was a "wildcat" and was not called by the Union. No formal picket line seems to have been established until sometime the following week. 10 The findings as to this conversation are based on the testimony of Balleisen. 11 The findings as to this meeting are based on the testimony of Mrs. Letz , Abreu, and Badillo. PECHEUR LOZENGE CO., INC. 515 At a union meeting on the afternoon of December 2, the employees decided, Mrs. Letz testified, to return to work only if all of them were recalled. 9. The Union's requests for meetings December 2, 1949, was a Friday. On the following Monday, December 5, the Union sent the following telegram to Mrs. Pecheur. I am prepared personally to conduct negotiations with you looking toward the immediate resumption of operations. I am confident such a conference could quickly resolve all issues. Continuation of the dispute is of advan- tage to neither side. Won't you kindly respond by calling my private wire Oregon 3-5332 to arrange such discussion. DAVID LIVINOSTON, President Local 65. Upon receipt of this telegram Mrs. Pecheur consulted Balleisen, who told her that he would prepare an answer. Mrs. Pecheur again suggested that Balleisen contact the Union directly, but Balleisen was of the contrary opinion : that "it would be best that the Union not know that I was in the picture, if she wanted the people back to work." Under date of December 7, 1949, Mrs. Pecheur signed a letter to the Union drafted by Balleisen on the Company's letterhead. This letter, after reviewing the past events, accused the Union of interference with management, bad faith, and trickery. With respect to the request for a meeting the letter stated the following : You state that you are anxious to settle this matter. In view of all that has transpired to date, and the fact that our faith in your Union and its promises are badly shaken, we must have concrete proof of your good inten- tions in the future. Therefore, the following are the ways in which this matter can be settled. 1. All the pickets and strike activities must cease and your union must agree in a letter to us, signed by you, that there will be no picketing, strik- ing, slowdown or other change in the manner and quality of our production, until February 1, 1950. The reason for this date is that we will not have our accountant's statement as to the final [sic] position of the Company for the year 1949 available to us much before that time. We must have such information before we can bargain with you intelligently. 2. If you carry out no. "1" faithfully, we will agree to confer with you after February 1, 1950, but with the understanding that we are not com- mitted to agree in advance to any of the clauses contained in your contract and with a further understanding that we are not obligated to accept any of your conditions. 3. We will rehire employees as we need them during this period of truce purely on the basis of the needs of the Company and who we think are of most benefit to us regardless of seniority in job. Until you are ready to meet our terms as stated above, we do not agree to confer with you or anyone else from your Union. Any moral obligation we had to bargain with you in good faith no longer holds because of the trickery and actions of your Union during the past week. The Union responded to this letter by telegram on the following day, December 8, as follows : 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IRENE PECHEUR, PECHEUR LOZENGE CO. INC. 253 36th Street: Your letter of December 7, provides a basis for settlement. I suggest that we meet to work out all the details. Just contact me as soon as possible at my office to arrange such a meeting. DAVID LIVINGSTON, Acting President, Wholesale and Warehouse Workers Union, Local 65, 13 Esther Pl. Mrs. Pecheur referred this telegram to Balleisen, who advised her to reply to the effect that the Company's December 7 letter was clear and precise and that if the Union wished to settle the matter it merely had to agree to the terms set out in that letter. Pursuant to this advice Mrs. Pecheur dispatched the following telegram to the Union: Re your telegram of December Eighth no conference necessary you merely confirm in writing verbatim the three conditions in our letter of December Seventh. PECHEUR LOZENGE Co. INC. On December 13, the Union sent the following telegram to Mrs. Pecheur : You indicate no conference is necessary, so perhaps you will be prepared to answer these questions by mail. 1. Are you prepared to establish procedures for handling grievances through the Union between now and February 1? 2. Will disputed questions be submitted to arbitration rather than new stoppages of work? 3. Will you give us in writing, persons you wish to reemploy in the order in which you will rehire them? 4. Will you give us assurances that on February 1, you will negotiate in good faith and make an honest attempt to reach agreement? Please communicate your reply to the undersigned. DAVID LIVINGSTON, President The Company did not reply to this telegram. - Mrs. Pecheur took it to Bal- leisen who told her, according to his testimony, that "The Union was merely stalling by asking these questions and that no reply should be made to it." 10. The December 7 request for reinstatement On December 5, 1949, the same date on which the Union sent its first tele- gram to the Company, requesting a meeting, the Company sent letters to seven of the wrappers who had been laid off, in the order of seniority, to return to work on Wednesday, December 7. These notices stated, "We are calling you back to work from layoff. There will be work for you on Wednesday Decem- ber 7, 1949." Upon consideration of these notices union officials decided that all the em- ployees, both strikers and those who had been laid off, should report for work on the morning of December 7. The employees were so notified either in person or by telegram.' 22 The telegrams read as follows : Urgent you attend meeting Wednesday morning. December 7, 7: 30 A. M. at corner restaurant, 36th St. near Pecheur shop. We are all reporting for work at 8: 00 a. m. Be present at meeting 7: 30 a. in. so that you will not lose your job. MARINO ABREU, Brooklyn Area Director. PECHEUR LOZENGE CO., INC. 517 Consequently, on the morning of December 7, the employees marched to the plant, led by the organizers, who conversed with Mrs. Pecheur. They were not put back to work, however. There is some confusion in the testimony as to the circumstances under which the request for reinstatement was made. The testimony of witnesses for the General Counsel is that Mrs. Pecheur was in- formed by Mrs. Letz that the employees were presenting themselves for work. The testimony of company witnesses is that Mrs. Letz merely asked "under what conditions are you asking all those people to come back to work?" The testimony is in substantial agreement that Mrs. Pecheur responded that she had only recalled those whom she notified. After some discussion the recalled employees were put back to work with the acquiescence of the Union. It seems clear from the circumstances, and it is found, that a request for reinstatement of all the employees was made on this occasion, both those laid off and those who had struck ; and that Mrs. Pecheur declined to reinstate at that time any persons other than those she had recalled. There is no indica- tion that Mrs. Pecheur was informed on that occasion that the employees had abandoned their decision not to work overtime. Though the General Counsel's testimony is that the request was intended to embrace only such employees as the Company could use at that time, the evidence does not disclose that it was so limited. 11. Events from February 1950 to June 1950 The strike dragged on to June 1950, when the Union finally abandoned it. Balleisen's connection with the Company remained undisclosed until sometime in February 1950, when Mrs. Pecheur was interviewed by a field examiner of the Board in connection with the charges of unfair labor practices filed on behalf of the employees. On the following day Union President Livingston called Balleisen and told him that, "the best thing" was for Balleisen to tell Mrs. Pecheur to agree to the union terms and "not to give any trouble." Balleisen told Livingston that the season was over now and that he had therefore advised the Company not to deal with any but a certified union. Later in the day Balleisen received a call from Union Attorney Rabinowitz asking if they "couldn't get together." Balleisen responded, in substance, that it would have to be on the terms Balleisen had given Livingston 18 On April 5, 1950, the Union complied with the provisions of Section 9 (f), (g), and (h) of the Act. On the following day, the Union's attorneys wrote the Company as follows : This is to advise you that Wholesale and Warehouse Workers Union, Local 65 has complied with the provisions of Sections 9 (f) and (h) of the Labor Management Relations Act of 1947. On behalf of the Union, we hereby demand an immediate collective bar- gaining conference with you for the purpose of negotiating an agreement. On behalf of your employees, we again demand immediate reinstatement. Please understand that this demand is unconditional. This communication was answered by Balleisen under date of April 11, 1950. Balleisen's letter questioned the Union's majority and stated that it was the policy of the Company not to recognize any Union until certified by the Board after an election. With respect to the request for reinstatement, Balleisen gave no specific response except to say that "As a matter of fact, we have repeat- edly requested our former employees to return to work. They have failed to do so." He further questioned the good faith of the Union. Is The findings in this subsection are from, Balleisen 's testimony. 998666-vol . 98-53-34 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This letter of Balleisen 's was answered by the union attorneys on April 14,1950, stating doubt that the Company's questioning of the Union's majority was raised in good faith ; but declaring that the Union was prepared to supply evidence of majority and to enter into a consent election agreement "or any other method" of establishing the Union 's status "so long as it can be established quickly." Balleisen did not reply to this letter . A short time later Rabinowitz telephoned Balleisen, and the latter suggested that Rabinowitz get in touch with the Board and set a date for conference at which a consent election could be discussed. A conference between the Union and the Company under the auspices of the Board was held on May 5, 1950 , but the parties were unable to agree upon eligibility to vote. Balleisen's position was that the eligibles should be those then employed by the Company "plus those people that we will can back in the future, that we can see that we would call back in the reasonable future." Rabinowitz' position was that the eligibles should be those who were working for the Company before December 2. Finally Balleisen suggested that Rabino- witz have the Union submit list of employees who wished to come back and who did not have jobs elsewhere , as a basis for discussion. Subsequently, Rabino- witz forwarded to Balleisen , who received it on May 12, a list of 70 employees who the Union indicated, were willing to return to work. Upon receipt of this list Balleisen conferred with Rabinowitz over the phone, told him that it was "almost verbatim the payroll of December 1 of the Company" and that it was not what was contemplated ; that some on the list had already been put back to work and some had refused to return to work. Balleisen informed Rabinowitz that he would prepare a list of eligibles and at a meeting on June 1, he sub- mitted such a list to Rabinowitz. It consisted of the names of 17 employees with a statement that the Company was willing to put them on a preferred list and agree not to hire new employees in their classifications until the list was exhausted. A postscript indicated that 3 of the employees on the Union's May 12, list had already been rehired and were then working. Balleisen stated that the Company's position was that the eligible voters should be the persons on that list plus those on the May 31 payroll , or the May 5 payroll if the Union preferred that. Rabinowitz conferred with the union representatives and stated that the Union could not win such an election . There were no further meetings. 12. Recalls and reinstatements Between December 5 and December 14, 1949, the Company recalled all the wrappers who had been laid off on December 2, 1949 . All returned to work In response to the recall , but within a few days all but 6 quit and joined the strike. The other 24 stayed on strike until the Union abandoned it. With the exception of one striker, Louis Feal Arce, who was recalled on December 8, the Company began to recall strikers on December 14, by written notice informing them that work would be available. Only 3 strikers were recalled in 1949, how- ever, and these did not return . All were production workers. After December 14, 1949, there were no further recalls of strikers until April 13, 1950, 1 week after Rabinowitz' letter of April 6 , 1950, informing the Company that the Union had complied with the Act and requesting reinstatement and bargaining. The recalls thereafter were as follows: In April 1950 the Company recalled 10 strikers, all wrappers, of whom 8 returned. In July it recalled 15 strikers, 7 of them wrappers , of whom 3 returned ; and 8 of them production employees of whom 7 returned. On August 21, 1 production employee was recalled who did not return. Of the total of 26 employees recalled between April 13 and August 22, 1950, 19 returned to work. An additional striker, Mary Christophelis, PECHEUR LOZENGE CO., INC . 519 who had been recalled on December 9, 1949 , but did not return to work then, applied for employment on September 6, 1950, and was hired. The union records of strike disbursements for the week of June 5, 1950, dis- close that 66 employees were then receiving strike benefits, or being carried as entitled to consideration for them. Of these however, 2, Ida Goldberg and Ricarda Sosa, had returned to work during April and were working during the week of June 5. Mrs. Pecheur's undenied testimony is that she was informed by employees that Sosa and Goldberg were union spies but that she nevertheless recalled and retained them. Not all the strikers were recalled. Mrs. Pecheur's testimony is generally to the effect that some were replaced, as to others that she had got new machinery and didn't need them. The record does not disclose anything more specific with respect to the basis upon which employees were selected for recall. On April 6, 1950, the Company had no more than 28 nonsupervisory employees. Between April 6 and June 30, 1950, the Company hired 20 new male and 22 new female employees, none of whom had been employed on December 2, 1949; and during that same period of time 14 male and 16 female employees were termin- ated. Between June 30 and December 31, 1950, the Company hired 35 new male and 11 new female employees, none of whom had been on the December 2, 1949, payroll; during that same period of time 36 male and 15 female employees terminated their employment. 13. The reason for the cessation of overtime Badillo's testimony is that the primary reason for the employees' cessation of overtime was that the employees thought that the Company was storing up goods for a strike. Additional reasons cited by Mrs. Letz in her testimony were that Mrs. Pecheur's "attitude" had changed, that there was a speedup, and that there was no progress in negotiations. It will be noted in their telephone conversation on November 30, Mrs. Letz iiformed Attorney L'Heureux of the employees' apprehension that the Company was storing up goods for a strike. At the meeting of the shop committee on the night of December 1, that possibility was also discussed. It will also be recalled that in their conversa- tion of November 30, 1949, Badillo informed Mrs. Pecheur that the Union had said that the Company was planning for a strike and piling up goods, an asser- tion which Mrs. Pecheur denied. 14. Interrogation The testimony of Foreman Anthony Bartulis , a supervisory employee, is that he asked some six employees whether they were members of the Union. This testimony is as follows : Q. (by Mr. Schurre ). You said these six men who continued to work overtime were not members of the Union. A. That is what they said. I don't know. Q. Did you ask them whether they were members of the Union? A. I asked, but they said no. B. Conclusions Aside from the allegations dismissed at the hearing, and the allegation of interrogation, the gist of the complaint is that the Company has refused to bargain with the Union since November 16, 1949; discriminatorily laid off the wrappers on December 2, 1949; that the resultant strike was an unfair labor practice strike ; and that on December 7, 1949 , and in June 1950, the employees 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were discriminatorily denied reinstatement. These contentions the Company denies. The Question of Discrimination It seems evident from the foregoing recitation of fact that the relations between the Company and the Union began with mutual good feeling and faith. It is equally evident, however , that atmosphere declined rapidly in late November and early December . The employees apparently became convinced , erroneously, that the Company was insisting on overtime in preparation for a strike ; the Company, evidently equally erroneously , that the Union was curtailing overtime as a bargaining maneuver . The resulting dispute, in my judgment, flowed from these convictions. The circumstances of the discussions over recognition and the promptness with which Mrs. Pecheur came to agreement for the election , despite her knowledge that the Union was not in compliance with the Act, affirmatively attest to her good faith in the early part of the negotiations . Apart from the conclusionary testimony of the participants as to "attitudes " during the negotiating session on November 22, the record does not disclose anything more sinister at that meeting than the normal amount of tentative exploration to be expected at such a first bargaining conference . Thereafter Mrs. Pecheur consulted Balleisen. Her position then became firmer , and at the November 29, 1949, meeting, she indicated that she was not prepared' to proceed with negotiations until a number of events, some indefinite in time, and recited above, had occurred. At the same time the Union does not appear to have disclosed its wage demands, though requested to do so. In view of the amicable background which preceded, and the fact that the Union apparently was not yet prepared to state its position fully, there is no sufficient basis, in my opinion , to find bad faith at so premature a state in the negotiations. On that same day, November 29, the production employees largely ceased to work overtime . Thereafter , events came to a rapid climax. On November 30, Mrs. Letz advised Attorney L'Heureux of possible strike action and asked for a meeting, and was told that Mrs. Pecheur saw no reason for further conferences since the employees had ceased overtime . On either that or the following day, Mrs. Pecheur assured Badillo that the Company was not seeking a strike, explained to him that overtime was quite normal, and urged him to satisfy him- self by inquiries . In that conversation she also told him that the cessation of production overtime would require the layoff of wrappers . After consulta- tion with Balleisen , Mrs. Pecheur , on December 1, acquiesced to the elimination of overtime . That same evening Mrs . Pecheur told Mrs. Letz that there would be a layoff, Mrs. Letz responding that she was confident that the employees would resume overtime , and agreeing to relay the decision of the shop com- mittee to Mrs. Pecheur on the following morning. Mrs. Pecheur declined to halt the layoffs in the interim , but promised to recall employees as quickly as possible. That same evening the shop committee voted to resume overtime, but this deci- sion was not conveyed to Mrs. Pecheur, and on the next day the layoff and the strike followed in rapid order. The first question to be resolved is whether the layoff was motivated by economic considerations or was for other and illegitimate reasons. It is clear from the evidence , and it is found, that because of the demands of the business, the refusal of the production employees to work overtime at that particular period of the year required the eventual layoff of a substantial num- ber of wrappers . Though there are factors recited heretofore, in the evidence of Mrs. Pecheur and •Balleisen, raising a possible suspicion that the Company's PECHEUR LOZENGE CO., INC. 521 ready acquiescence to the elimination of overtime and the consequent layoff, were motivated by the belief that the employees and the Union would thereby be be pressed into resuming overtime, the evidence does not appear substantial enough under the circumstances to warrant such a conclusion with reasonable certainty. The fact that there might have been, according to the testimony of Foreman Bartulis and Forelady Claro, enough stock piled up to keep the wrappers busy for several days, does not seem conclusive, since more than half of the wrappers were not laid off. The decision of the shop committee on December 1 to resume overtime does not negate the operation of economic considerations, which Mrs. Pecheur and Vice-President Thatcher testified were the only factors weighed in deciding to make the layoffs, since it was not conveyed to Mrs. Pecheur.14 It is found that the evidence does not warrant a finding that the December 2, 1949, layoff was for other than economic considerations. It is therefore concluded that the Company did not engage in unfair labor practices thereby, and it will be recommended that that allegation of the complaint be dismissed. The next question is the validity of the refusal to reinstate the employees when they applied on December 7. This application constituted notice of abandonment of the strike, and if the application was unconditional the refusal to put the employees back to work was discriminatory. I find, however, that the Company did not know, and had no reason to know, that the application was unconditional. So far as the evidence discloses, Mrs. Pecheur was still unaware that the shop committee had voted to resume overtime. The request for reinstatement included the restoration of the laid-off wrappers as well as of the striking employees. The layoff being one of the factors that produced the strike, the application cannot be said to be unconditional. A request for reinstatement of strikers conditioned upon the elimination of one of the causes of the strike is not unconditional unless the condition is one which the employer is required, as a matter of law, to maintain. E. A. Laboratories, 80 NLRB 625. The Company was not required to reinstate the laid-off wrappers unless it had reason to suppose that there would be work for them to perform. Since, so far as it apparently knew, there was no prospect of such work on December 7, it is found that the denial of reinstatement on December 7, 1949, was not discriminatory. With respect to the request for reinstatement in April 1950 somewhat similar conclusions follow : The Union did not then disclose to the Company-nor, so far as the record shows, did it do so at any time up to the hearing that the production employees had abandoned their insistence on the elimination of overtime. As to the wrappers, they had all been recalled long before-in December 1949. In addition, there is no evidence that hirings of new employees after April 6, 1950, were for jobs which the as yet unrecalled employees were qualified to fill. It is consequently found that the employees were not at any time discrim- inatorily denied reinstatement, and it will be recommended that that allegation of the complaint also be dismissed. 14 Mrs. Letz did testify that "probably" a day or two after the layoff she informed Attorney L'Heureux that the employees were willing to work overtime ; that L'Heureux responded that the Company had now retained a labor relations man whom he declined to name ; and that he (L'Heureux) "was not connected with the matter any longer." Mrs. Letz did not transmit her information to Mrs. Pecheur. In view of L'Heureux's disclaimer of connection it is found that Mrs. Letz' statement to him did not constitute notice to the Company. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Refusal to Bargain In view of the result of the secret ballot election held under the auspices of the Company and the Union, which the Union won overwhelmingly , the Company's written agreement of recognition , and the fact that all but a few employees joined the strike on December 2, 1949 , it can scarcely be doubted that after November 16, 1949, the Union was the exclusive representative of the employees for the purposes of collective bargaining within the meaning of the Act. Such an election is not, of course, to be accorded the recognition given an election conducted by the Board, but as evidence of majority it is at least entitled to equal dignity with the signing of designation cards-which have often been accepted by the Board and courts as evidence of majority. There is no evidence suggesting that through December 1949, this majority was in any way affected. It is consequently found that from and after November 16, 1949, the Union represented a majority of the employees. The unit within which the Union was recognized , consisting of all employees employed at the plant , exclusive of office and clerical employees , sales employees, chauffeurs, guards, and all supervisors as defined I. Section 2 (11) of the Act, is conceded to be and is found to be appropriate within the meaning of the Act. The layoff and strike occurred on Friday , December 2. On the following Monday, December 5, the Union sought a meeting to discuss the immediate resumption of operations. The Company's reply was to refuse, in its letter of December 7, to meet at all before February 1, 1950, and then only upon the condition that the Union terminate the strike and agree in writing in advance not to strike or engage in similar action until that date, and to give the Company complete freedom in selecting employees for recall. In sum, the Company's December 7 letter constituted a flat refusal to negotiate the termination of the strike . The Union's reply of December 8 indicated that it was willing to discuss settlement on the basis of the Company's terms and wished only a meeting for that purpose-which it requested . The Company's reply reiterated its refusal to meet unless the Union first agreed to the Company's conditions. It is obvious that if the Union agreed in advance, there was no necessity for a meeting to terminate the strike . Being unable to secure such a meeting, the Union sought then in its December 13 telegram to negotiate the differences by correspondence . This attempt the Company did not even acknowledge. It seems quite apparent that the length of the strike is attributable at least in substantial measure to the Company 's refusal to discuss its termination. The Union's correspondence provided ample basis for early settlement. Had the parties met and talked, the employees' willingness to abandon their over- time demand would have been disclosed. The basis for recall of the wrappers would then have been established , the substantial cause of the strike thus re- moved, the production employees returned to work , and the need for replacements eliminated. But no common ground for solution of controversy can be found without discussion . It needs no citation of authority to state that refusals to negotiate labor disputes were the most prolific cause of industrial dislocation which the Act was intended to eliminate. Unless, therefore, the Union's noncompliance with the Act is a defense, the refusal of the Company to meet with the Union to discuss settlement of the strike was an unfair labor practice which prolonged the strike , and converted it from an economic to an unfair labor practice . If it was so converted, the striking employees could not be displaced by replacements ( N. L. R. B. v. Mackay Radio and Telegraph Co., 304 U. S. 333 ) and upon unconditional request for PECHEUR LOZENGE CO., INC. 523 reinstatement are entitled to be restored to their old jobs-even though new employees have been hired in their places. In addition, if it became an unfair labor practice strike, any loss of majority thereafter is attributable to the unfair labor practices, and the Company's duty to continue to treat with the Union unconditionally as the exclusive representative unaffected by subsequent events. Consequently, the Company's refusal in Balleisen's letter of April 11, 1950, to negotiate unless there were a new election, would constitute a violation of Section 8 (a) (5) of the Act. Franks Bros. Company v. N. L. R. B., 321 U. S. 702. The Union's willingness in April and May 1950 to submit to an election would not constitute a waiver of its status. It would not be sound policy In the normal circumstance to discourage amicable and legal compromise of disputes except under peril of waiver of all rights if the overtures are unsuccessful. On the question as to whether the Union's noncompliance is a defense, there are at this time three decisions, two by the Board in the cases of Andrews Com^ pang, 87'NLRB 379, decided December 1949; New Jersey Carpet Mills, Inc., 92 NLRB 604, decided December 1950; and one by the Court of Appeals for the District of Columbia: West Texas Utilities Co. v. N. L. R. B., 184 F. 2d 233, (C. A., D. C.) decided July 10, 1950, cert. den. 341 U. S. 939. In the Andrews case a majority of the Board held that it was not a violation of Section 8 (a) (5) of the Act to refuse to bargain with a union which was not in compliance at the time of the refusal, but which came into compliance there- after and prior to the issuance of a complaint. After the Andrews decision however, the court of appeals decided the West Texas case, in which it criticized the Board's conclusions in Andrews, and held to the contrary. The court said that "The Act's only sanction for noncompliance is denial of Board facilities" ; and that if an employer refuses to bargain when a union is not in compliance, "The ability of the union to successfully invoke Board processes thereafter, so long as its officers file beforehand, may result in his being cited for an unfair labor practice." In the later New Jersey Carpet Mills case, a majority of the Board acquiesced to the construction of the court of appeals in the West Texas case, saying : "We believe that adherence to the Court's view of the Board's power is consistent with the statutory plan and will best effectuate the policies of the Act." Chair- man Herzog, of the majority, indicated that as a matter of policy, however, he would not find a violation where the refusal to bargain is specifically grounded on the absence of compliance. The New Jersey decision is conclusive and binding here. Noncompliance of the Union was not cited by the Company as the basis for its refusal to negotiate in December although the Company was specifically informed of the noncompli- ance. As late as November 28, 1949, Mrs. Pecheur told Balleisen that neither the Union's noncompliance nor its "pro-Communist" character "would make [any] difference to her," if the employees wanted the Union ; and that she was willing to bargain with it if she "could get someone to advise her as to getting the proper contract under which she could live." It is therefore found that the refusal of the Company on and after December 7, 1949, to meet with the Union, then the exclusive representative of its employees in the appropriate unit, constituted interference, restraint, and coercion of employees in violation of the rights guaranteed in Section 7 of the Act" The Company suggests that the New Jersey Carpet Midis case Is inapplicable for the reason that the Board stated In that case that the Union there Involved had never been charged with Communist associations. I do not find that a basis for avoiding the application of the decision. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is consequently found that the strike of December 2, 1949, was prolonged by the unfair labor practices of the Company in refusing to meet with the Union on and after December 7, 1949, and was thereby converted from an economic to an unfair labor practice strike. It is further found that by refusing to recognize the Union on and after April 11, 1950, the Company refused in viola- tion of Section 8 (a) (5) of the Act, to bargain with the exclusive representative of its employees in the appropriate unit, thereby further interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. It has also been noted that Foreman Bartulis asked several employees whether they were members of the Union. Although the Company characterizes this as an "isolated" incident, as indeed it appears to be, the Board has con- sistently held that such questioning is "per se a violation of Section 8 (a) (1) of the Act." Standard-Coosa-Thatcher Company, 85 NLRB 1358. Bartulis' motive in asking the question therefore seems immaterial. It is consequently found that by such interrogation the Company further interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. Dealer's Inc., 95 NLRB 1009. The Company has submitted a number of proposed findings. Of these the following are accepted : 1, 2, 3, 4, 5, 7, 9, 10, 11, 12, 13, 14, 16 to 29 inclusive, 35, 36, 37, 39, 40, 43, 44, 45. The remaining requested findings are rejected either because contrary to my findings, omnibus in nature, immaterial to the issues, or so phrased that granting of them will confuse the findings. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in Section III, above, occurring in connection with the operations of the Company 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 Having found that the Company has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It having been found that the Company refuses to bargain collectively with the Union, it will be recommended that the Company, upon request, bargain with it. It will be further recommended that the Respondent cease and desist from interfering with, restraining, or coercing its employees in any like or related manner, or by interrogation of employees as to their union membership or non- membership, in the exercise of their rights guaranteed in Section 7 of the Act. On the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. '65' The Wholesale, Retail and Warehouse Workers Union of New York and New Jersey is a labor organization within the meaning of Section 2 (5) of the Act. 2. The strike of December 2, 1949, was prolonged by the Company's unfair labor practices on and after December 7, 1949. 3. All employees employed at the Company's plant, exclusive of office and clerical employees, sales employees, chauffeurs, guards, and all supervisors as SUNBEAM CORPORATION 525 defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. '65' The Wholesale, Retail and Warehouse Workers Union of New York and New Jersey was on November 16, 1949, and at all times thereafter has been, the exclusive representative of all employees in the appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing to bargain collectively with the Union as the exclusive rep- resentative of its employees in the appropriate unit, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The Company has not engaged in unfair labor practices in violation of Section 8 (a) (3) in laying off or refusing to reinstate its employees. [Recommendations omitted from publication in this volume.] SUNBEAM CORPORATION and ANN SALABEC, EVE SALOPEK, LAURA RAE ATKINSON, AND EARL F. OSLIE SUNBEAM CORPORATION and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA SUNBEAM CORPORATION, PETITIONER and INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, LOCAL 1031 AND UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, CIO. Cases Nos. 13-CA- 365,13-CA-541, and 13-RM-58.1 March 11, 1952 Supplemental Decision and Order On April 5, 1951., the Board issued its Decision and Order (Case No. 13-CA-365, 541) finding that the Respondent, Sunbeam Corpor- ation, had unlawfully refused to bargain with United Electrical, Radio and Machine Workers of America, herein called the UE Inter- national, in violation of Section 8 (a) (5) of the Act, and ordering that it bargain with that organization.2 The Respondent's obligation to bargain with the UE International rested upon an earlier certifi- cation by the Board of the UE International, in Case No. 13-RM-58, as majority representative of the Respondent's production and main- tenance employees 3 When the certification issued, on April 14, 1950, and when the election preceding it was held, on December 13, 1949, i For purposes of this Supplemental Decision and Order only, Case No. 13-RM-58 Is hereby consolidated with Case No. 13-CA-365, 541. 2 Sunbeam Corporation, 93 NLRB 1205. 8 Sunbeam Corporation, 89 NLRB 469. 98 NLRB No. 98.