American Coin Lock Co., Inc.

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed to rehire him with full seniority and then rescinded its decision upon learning that this rehiring with full seniority would in all probability create grievances in the plant. This does not, in my view, spell out an unlawful discrimination within the meaning of the Act to encourage union membership. The employer herein, it is found, decided, for a nondiscrimina- tory reason, to rescind its decision to rehire Strickwerda True, the matter was brought to the attention of Respondent Company by the union representative, Barker, but it was not coupled with a request that the complainant not be hired. As a result, the failure to rehire Strickwerda did not constitute conduct violative of Section 8 (a) (3) and (1) of the Act By the same token, in the absence of an unlawful discrimination, there can be no violation of Section 8 (b) (2) of the Act, as Respondent Union did not cause Respondent Company to discriminate against Strickwerda in violation of Section 8 (a) (3), or for reasons other than his failure to tender dues or initiation fees, there is no unlawful causation within the meaning of Section 8 (b) (2). Similarly, there has been no unlawful re- straint or coercion practiced by Respondent Union within the meaning of Section 8 (b) (1) (A) of the Act See N. L. R. B. v Potlatch Forests, Inc., 189 F 2d 82 (C. A. 9) While the record does disclose that Barker at a later date urged Strickwerda to withdraw from Respondent Union, this is insufficient to offset the preponderance of the evidence set forth above which discloses that Respondent Company refused to hire Strickwerda for reasons not discriminatory under the Act. I shall, accordingly, recommend that the complaint be dis- missed in its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of Respondent Company, Northwest Poultry and Dairy Products Company, affect commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondent Union, Egg and Poultry Workers Local No. 231, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act 3 Respondent Company, Northwest Poultry and Dairy Products Company, has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act 4. Respondent Union, Egg and Poultry Workers Local No. 231, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, and its agent, Shirley W. Barker, have not engaged in unfair labor practices within the meaning of Section 8 (b) (2) and (1) (A) of the Act [Recommendations omitted from publication] AMERICAN COIN LOCK CO., INC. and LOCAL 32-B, BUILD- ING SERVICE EMPLOYEES INTERNATIONAL UNION, AFL. Case No. 2-CA-2330. December 15, 1953 DECISION AND ORDER On July 28, 1953, Trial Examiner Thomas N. Kessel issued his Intermediate Report in this case, finding that the Respondent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ent and the General Counsel filed exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has 107 NLRB No 88. AMERICAN COIN LOCK CO., INC. 337 considered the Intermediate Report, the exceptions , and the entire record in this case . The Respondent contends that the Board either lacks or should not assert jurisdiction in the present case. The Respondent is a Maine corporation with its principal office in Pawtucket , Rhode Island , which is engaged in the manufacture , sale, and leasing of coin locks and other products for use in public toilets . It also operates public restroom and lavatory facilities under concessions from various railroads and the city of Boston . It operates washroom concessions at railroad stations and terminals in New York City, Hartford, New Haven , and New London , Connecticut ; Providence, Rhode Island ; Worcester , Massachusetts ; and Montreal , Canada. This proceeding involves only the 12 employees in the men's wash- room concession at Grand Central Terminal in New York City, which is one of five washrooms there; the others are operated by the railroads which own and operate the terminal. The Respondent admits that its total income in 1952 exceeded $100,000 , of which more than 50 percent was derived from the sale or lease of coin locks shipped from its principal office in Rhode Island to points outside the State and that its various concessions resulted in a gross income exceeding $ 50,000. The record does not indicate the annual revenue from the concession involved in this case , although a prorata estimate results in a revenue of at least $6,250. Although the operation of the Respondent's washroom con- cession at the Grand Central Terminalis not entirely unrelated to interstate commerce, we are of the opinionthat , on the facts of this case , it will not effectuate the policies of the Act to assert jurisdiction in this proceeding . Accordingly, without otherwise considering the merits of the case or the other grounds urged for denying jurisdiction , we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] Member Murdock took no part in the consideration of the above Decision and Order. Intermediate Report STATEMENT OF THE CASE Upon a charge and an amended charge , filed by Local 32-B, Building Service Employees International Union, AFL, herein called the Union , the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York, New York), issued his complaint dated July 18, 1950 , against American Coin Lock Co. Inc., herein called the Respondent , alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint , the amended complaint , the charges , and a notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices , the complaint alleged that: (a) The Union on January 3, 1952, was the exclusive bargaining representative of the Respondent'- • 'nployees 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved in this proceeding, and that on or about that date it requested the Respondent to bargain collectively with it concerning terms and conditions of employment of these em- ployees, but that the Respondent refused and has ever since refused to comply with this bargaining request and instead unilaterally imposed terms and conditions of employment for the employees in disregard of its statutory duty to bargain collectively ; that by such conduct the Respondent violated and continues to violate Section 8 (a) (5) of the Act; and (b) independent of the foregoing conduct, the Respondent violated Section 8 (a) (1) of the Act by informing the employees through its officers or agents that it would not recognize or bargain with the Union as their collective-bargaining representative. In its answer duly filed , the Respondent admitted certain facts alleged in the complaint concerning the nature and extent of its corporate activities, but denied that the particular operations involved in this proceeding affected commerce within the meaning of the Act. The answer also admitted the Respondent 's refusal to recognize the Union as the exclusive representative of its employees and the unilateral imposition of terms and working condi- tions for its employees as alleged in the complaint, but denied that it had thereby violated Section 8 (a) (5) of the Act. The answer also affirmatively alleged as defenses to the 8 (a) (5) allegations of the complaint that: (a) The employees assertedly represented by the Union do not constitute an appropriate bargaining unit ; (b) the Union did not represent a free and uncoerced majority of the employees in the alleged appropriate unit; (c) the employees involved in this proceeding are subject to the provisions of the Railway Labor Act and hence the Board lacks jurisdiction in this case ; and (d) the Respondent 's refusal to bargain with the Union was justified because it was confronted, concurrently with the Union's claim, with a claim of representation from another labor organization.' The answer further defends on the ground that the conduct alleged by the complaint as unlawful occurred more than 6 months before the filing and service of the amended charge in this proceeding ,z and gen- erally denies commission of any conduct violative of the Act. Pursuant to notice, a hearing was held at New York, New York, on April 27 and 28, 1953, before Thomas N. Kessel, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel. Full opportunity to be heard , to examine and cross -examine witnesses, and to introduce evidence was afforded all parties. At the close of the case, counsel for the General Counsel and the Respondent argued orally on the record and stated their intention not to file briefs.3 Upon the entire record in the case , and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT American Coin Lock Co., Inc., a Maine corporation with its principal office in Pawtucket, Rhode Island , is engaged in the manufacture , sale , and leasing of coin locks and other products for use in public toilets , and also operates public restroom and lavatory facilities under concessions from various railroads and the city of Boston . The Respondent's manu- facturing operations are performed at Pawtucket , and rentals, sales , and servicing of its products are conducted from branch offices in various cities including an office in New York i The Respondent's affirmative defenses , denoted as (c) and (d) above, were added to the answer by amendment during the hearing. 2 The original charge was filed on January 28, 1953, and the first amended charge was filed on January 19, 1953 Substantially, the amended charge sets forth the same conduct by the Respondent as that contained in the original charge. The Respondent's contention that Section 10 (b) requires dismissal of the complaint because it is based on the amended charge which was filed more than 6 months after the commission of the conduct alleged therein to be unlawful is without merit The amended charge did not alter the substance of the original charge which was filed within 6 months of the conduct alleged therein tv be un- lawful, and as the complaint is based upon the unfair labor practices described in this charge, the statutory requirements of Section 10 (b) have been met. J S. Abercrombie Company, 83 NLRB 524 3Counsel for the Union had been called away on other business before the close of the hearing, and had indicated to the Trial Examiner that he would abide by the General Counsel's agreements as to the conduct of the hearing. AMERICAN COIN LOCK CO., INC. 339 City. The answer admits that Respondent's income in 1952 from the sale or lease of products produced at its Pawtucket plant and shipped to points outside the State of Rhode Island exceeded $ 50,000. The record shows and the Respondent conceded at the hearing that it has agreements with various railroads throughout the United States for the installation and operation of its coin locks at railroad stations and terminals , and that in these coin lock operations the Respondent is clearly engaged in interstate commerce 4 The Respondent operates the following washroom concessions at railroad stations and ter- minals: For the joint operators of the Grand Central Terminals at New York City; for the New York, New Haven and Hartford Railroad at Hartford, New Haven, and New London, Con- necticut, and at Providence, Rhode Island, for the New York Central Railroad at Worcester, Massachusetts, and for the Canadian Pacific Railroad at Montreal, Canada. The Respondent also operates a municipal comfort station under a contract with the city of Boston. The wash- ro.im concession at the Grand Central Terminal in New York City is the operation involved in this proceeding The Respondent asserts that each washroom concession is an independent local operation conducted separately from all other of the Respondent's business activities. To support this assertion the Respondent presented evidence which shows that each washroom con- cession has its own foreman or manager, employees are hired locally , and supplies incident to the operation of the washrooms are purchased locally . There is moreover no contact or interchange of employees between the various washrooms operated by the Respondent. Ac- cordingly , the Respondent contends that the Board lacks jurisdiction in this case because the operation of the washroom in question does not constitute interstate commerce, and, alternatively , that its impact on commerce is too remote to warrant assertion of jurisdiction by the Board. 6 I accord no merit to these contentions . In addition to the above -related factors importing a local character to the washroom operation, the record reveals that labor relations and other policy matters governing the Grand Central as well as all the Respondent 's other washroom concessions are determined by the Respondent's president and secretary at Pawtucket who also set policy with respect to the Respondent 's coin-lock leasing and manu- facturing activities. Personnel and accounting records for the washrooms are centrally maintained at Pawtucket, and funds derived from the operation of each washroom, though deposited locally, are controlled by the Respondent 's treasurer . These facts impel the conclusion that the Grand Central washroom concession is an integral part of the Respond- ent's multistate business operations . Under these circumstances it is well settled that the totality of the Respondent 's operations is determinative of the existence of the jurisdictional requirements in this case .? As the Respondent's manufacturing and other coin-lock opera- tions concededly constitute interstate commerce, I find that the jurisdictional requirements of the Act are met in this case . As to the contention that assertion of jurisdiction is not here warranted because of the allegedly local character of the washroom, it is noted that E. D. Moorhouse, manager of the Grand Central Terminal and an acknowledged expert on the operation of railroad terminals in this country, testified that washroom facilities of the sort here involved are necessary to the operation of railroads engaged in interstate com- merce. As the railroads which use Grand Central Terminal are extensively engaged in the interstate transportation of passengers for whose benefit the terminal washroom is maintained , I further find that the assertion of jurisdiction in this case will effectuate the policies of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 32-B, Building Service Employees International Union , AFL, is a labor organization admitting to membership employees of the Respondent. 4Stanislaus Implement and Hardware Co , Ltd., 91 NLRB 618 5 Grand Central Terminal is operated jointly by the New York Central Railroad and the New York, New Haven and Hartford Railroad. 6 No evidence was adduced as to the income derived by the Respondent from the operation of the Grand Central washroom, but the answer admits that the Respondent's gross income in 1952 from the operation of all its washroom concessions exceeded $50,000 7 Metropolitan Life Insurance Company Parklabrea Resident Community, 93 NLRB 381; The Borden Company, Southern Division, 91 NLRB 628 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The pertinent facts Beginning with a date in the early 1920's, the men's public washroom south of the waiting room at Grand Central Terminal in New York City was operated by a partnership, referred to in this proceeding as the J. P. Carey Company, under a concession agreement with the joint owners of the terminal. This agreement continued until December 31, 1951. On about December 1, 1951, the J. P. Carey Company notified the terminal owners of its intention to relinquish its concession at the end of the month. The terminal owners thereupon arranged with the Respondent to take over the concession on January 1, 1952, for a trial period of 3 months during which it was to be determined whether the Respondent could profitably run the washroom. By a contract dated February 5, 1952, the parties agreed to the operation of the washroom by the Respondent for the period January 1, 1952, to March 3, 1952, with continuation of the arrangement thereafter on a month-to-month basis. The Respondent has subsequently continuously operated the washroom. In acquiring its concession from the terminal owners the Respondent participated in no business dealings with the J. P. Carey Company, and no finding is herein made that the Respondent is a successor company. On January 11, 1946, the Union executed a bargaining agreement with the J. P. Carey Company covering the latter's Grand Central washroom attendants. This contract was to run to December 31, 1946, and was automatically renewable for yearly periods absent notice of intention from the parties to cancel or revise its terms. The contract also provided that it should automatically terminate upon cessation of the concession agreement between the J. P. Carey Company and the terminal owners. In addition, the contract contained a clause which in substance required the employment of members of the Union as attendants. Except as to modifications of the wage schedule in the contract, the parties, by letter agree- ments, renewed all the terms of the contract in each succeeding year that the washroom was operated by the J. P. Carey Company, the last renewal occurring in January 1950. The record clearly establishes that the Respondent in late December 1951 learned of the Union's representation of the washroom attendants and the fact that the contract between the Union and the J. P. Carey Company would automatically expire with the termination of the concession. In discussions by the terminal manager with Frank J. Rowse, Jr., and Mr. Bruce, the Respondent 's secretary and sales manager, respectively , the latter were advised that bargaining matters with the Union were the exclusive concern of the Respondent. By letter dated December 21, 1951, the J. P. Carey Company informed the Union that its concession would terminate at the end of the month. On January 3 or 4, 1952, George Healy, chairman of Council 4 of the Union's Local 32-B, communicated with Mr. Jenkins who with Roger Crawford, the working foreman, jointly exercised authority over the operation of the washroom for the Respondent. Jenkins and Crawford are herein found to be supervisors within the meaning of the Act. Healy asserted to Jenkins the Union's representation of the washroom attendants and requested the Respondent to negotiate a bargaining contract. Jenkins replied that he lacked authority to conclude a contract and told Healy that he would contact the Respondent's office in Pawtucket and would then call him back. Failing to hear further from Jenkins, Healy called his office several times but was never able to reach him. He then went directly to the washroom on January 13 or 14 to seek him out, but succeeded only in conferring with Foreman Crawford who was instructed by Healy to have Jenkins call him at his office that afternoon. Healy also left word with Charles Smith, one of the attendants, to have Jenkins contact him and left his card for that purpose. Smith delivered Healy's message to Jenkins that day. Jenkins responded to Smith in the presence of other employees , " I don't want no part of that man. I am not going to have no union in this place. I want you fellows to understand , if I have to get you one by one, I am not going to have a union in here." Throwing Healy's card aside, Jenkins further said, "American Coin Lock don't want any union, didn't care to bother with it, don't want it; I am not going to have it." When Healy's efforts to communicate with Jenkins proved fruitless, he contacted the Union's attorneys. Upon learning of these events from Healy who also informed him that the Respondent had unilaterally imposed new terms and working conditions for the attendants including a reduced wage scale,8 Harold IsraeLson, of counsel for the Union, called Jenkins and requested bar- gaining negotiations with the Union at an early date. Jenkins advised that he lacked authority 8 The Respondent stipulated that it posted these new terms and conditions on about January 15, 1952. AMERICAN COIN LOCK CO., INC. 341 and referred Israelson to Rowse at his Pawtucket office. Israelson spoke to Rowse by telephone between January 15 and 17, 1952, told him that the Union represented the washroom attendants and requested the Respondent to bargain collectively. He also objected to the unilateral imposition of terms and conditions of employment for the attendants by the Re- spondent. When Israelson asked Rowse for an early meeting concerning these matters, the latter indicated that he would be in New York in a couple of weeks and that he would then contact Israelson. He further indicated that Israelson could confer with Jenkins, but emphasized that the latter was not authorized to commit the Respondent to any agreement. Jenkins was to contact Israelson to arrange the meeting with Rowse. Subsequently, Israelson called Jenkins several times by telephone but was informed each time that Jenkins was out. Jenkins failed to return his calls, although Israelson left word on these occasions for Jenkins to call him upon his arrival. Not having heard from Rowse, Israelson made no further attempts to reach the Respondent but filed the charge in this proceeding on January 28, 1952. Rowse testified that he had delayed contacting Israelson because he required legal advice; that he felt at the time that the Union's demands created "complications" because of the financial uncertainties of the washroom operation which had been undertaken on a "trial basis," and also because of the "approach" by both the Union and the Brotherhood of Railway and Steamship Clerks to secure bargaining rights for the washroom employees. He further explained his failure to communicate with Israelson by alluding to the filing of the charge as an additional complicating circumstance. Rowse also testified that following Israelson's call he had conferred with his father and with persons within the Respondent's organization with legal experience, and that he had intended calling Israelson as he had promised despite his subsequent failure to do so. As to the need he had felt for legal advice, he admitted that on about December 28, 1951, in discussions with Moorhouse, the terminal manager, concerning the concession arrangements, he had been apprised of the relations between the Union and the J. P. Carey Company and was advised to obtain legal advice concerning the Respondent's obligation to bargain with the Union. To the General Counsel's inquiry whether he had sought such advice, he replied: We relied on our own experience in such matters at first. After all, we had been op- erating these concessions in other places for a number of years. There was no new operation to us. The testimony of Rowse regarding the "approach" by the Brotherhood of Railway and Steamship Clerks referred to a letter written by that labor organization to the terminal manager, Moorhouse, dated January 3, 1952, which constituted a request to turn the wash- room work over to Grand Central Terminal employees represented by the Brotherhood and is not here construed as a claim for recognition or bargaining rights. Rowse conceded doubt that he had raised this matter in his conversation with Israelson. B. The appropriate unit As noted, the attendants in the washroom here involved constitute the total work force employed therein. In contending that a unit limited to these employees is inappropriate, the Respondent has taken no clear position as to any other bargaining unit in which these employees are appropriately includable, but suggested at the hearing that there are such other units. The Respondent implied that these employees might more appropriately be part of (a) a unit including the attendants in all washrooms of the New York, New Haven and Hartford Railroad which are covered by a single contract between that railroad and the Respondent; (b) a unit of all washroom concessions operated by the Respondent for several railroads in various States; or (c) a unit consisting of all employees in all the washrooms at Grand Central Terminal. As to this last-mentioned unit, it is noted that in addition to the washroom concession operated by the Respondent, there are at Grand Central Terminal four other washrooms directly operated by the terminal owners. I find no merit to the contention that the washroom attendants involved in this proceeding do not comprise an appropriate bargaining unit, or that they are more appropriately in- cludable in any of the units suggested by the Respondent. All these attendants perform the same duties, wear the same distinctive uniforms, are supervised by one supervisor, and have the same terms and conditions of employment. Although the Respondent's attendants at Its washrooms in other cities have similar duties and working conditions, these wash- 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rooms are located at appreciable distances from the Grand Central washroom and the attendants in question are never interchanged with employees in other washrooms and have no contact with them whatsoever . Also pertinent is the autonomous nature of the Re- spondent's Grand Central washroom operation . All these circumstances bespeak a suffi- ciently strong community of interest among the Respondent 's Grand Central attendants to warrant a conclusion that they may constitute aunit separate and apart from the Respondent's attendants employed in other cities or at terminals of any single railroad . As to the sugges- tion that the attendants in question appropriately belong in a unit with attendants in the other Grand Central Terminal washrooms , it is sufficient to point out that these other attendants are not the Respondent 's employees and no valid basis has been indicated for including the Respondent's attendants in a single unit with employees of another employer. I find that a unit of employees consisting of the attendants employed in the washroom operated by the Respondent at its concession in Grand Central Terminal , excluding super- visors, is appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. C. The Union' s majority in the appropriate unit In 1945 the 12 attendants then comprising the J. P. Carey Company 's total complement of washroom employees decided by a private poll to be represented by a union. Thereupon each of these employees signed a card applying for membership in the Union and designating it as their collective -bargaining representative. All 12 of the foregoing attendants continued their employment with the J . P. Carey Company until the latter 's termination of its con- cession on December 31, 1951 , and on that date constituted the total washroom force. When the Respondent became the washroom concessionaire on January 1, 1952, these employees continued their employment as attendants. The employment of 1 attendant terminated on January 7, 1 left on January 21 , 2 on January 22, 1 on January 24 , and 4 on January 25, 1952. No replacements were hired before January 21. Between that date and January 25, 1952 , the Respondent hired 3 new attendants. The Respondent's records reveal that on May 14 , 1952, there were 9 attendants employed in the washroom. Of these, only 3 were part of the group which had been employed in the washroom on January 1, 1952 , where the Respondent took over the concession . The foregoing cir- cumstances show that between January 1 and 7, 1952 , there were 12 employees in the ap- propriate unit, and that from January 7 to 21 , 1952, there were 11 employees in the appro- priate unit ; also, that the employees in the unit during these periods had in 1945 voluntarily designated the Union as their bargaining representative , and had not thereafter revoked these designations or had taken any action inconsistent with these designations . The parties stipulated and the record shows that all these employees had regularly paid their dues to the Union at least as late as December 31. 1951, to cover payments for the month of January 1952, and that 6 of these employees 9 paid their union dues after January 1 , 1952. All these latter 6 employees worked in the washroom at least until January 21, 1952. The Respondent's contention that the Union at all times pertinent lacked the necessary majority among the employees in the appropriate unit to sustain its bargaining demands is premised on the fact that all the bargaining contracts between the Union and the J. P. Carey Company contained closed -shop provisions compelling membership in the Union as a condition of employment. In substance, the Respondent argues that evidence of membership in the Union during the life of these contracts is proof, at best, of an involuntary or coerced majority , and that the General Counsel has failed in this proceeding to present any other evidence to establish representation by the Union of a free and uncoerced majority when it presented its bargaining demands to the Respondent. The Respondent further asserts that the closed -shop provisions in the contracts were unlawful, at least after the 1947 amendments to the Act, and that because the Union's majority in January 1952 , if such majority existed, was necessarily the result of conduct by the Union violative of the Act , the Respondent was not obligated to bargain with the Union absent its prior certification by the Board pursuant to a self-determination election. Without deciding the question posed by the Respondent's contention, and assuming arguendo that the General Counsel could not, in view of the closed -shop contracts , rely upon the union designations signed by the attendants in 1945 to prove the Union 's majority status in January 1952 , I am satisfied that there is proof, independent of these designations , to establish the Union's majority status from January 7 to January 21, 1952. As the findings hereinafter made 9 Employees Laraque, Smith, McPherson, Tatum, Esdale, and Earle. AMERICAN COIN LOCK CO., INC. 343 of conduct violative of the Act, occurring between January land 21, are sufficient to sustain the recommended order herein, it is unnecessary to determine the Union 's majority status during other periods. The record shows that there were 11 employees in the appropriate unit from January 7 to 21 , 1952 , and that 6 of these employees paid dues to the Union after January 1, 1952. It is clear that these 6 employees not only failed to withdraw from the Union after the closed- shop contract ceased to operate as a restraint upon them , but by their voluntary payment of dues after the expiration of the contract affirmed their adherence to the Union . I am satisfied from these circumstances that at least these 6 employees on and after January 1, 1952, freely adhered to the Union . Accordingly , as these 6 employees constituted more than 50 percent of the Respondent 's complement of 11 employees who worked in the Grand Central washroom during the period from January 7 to 21 , 1952 , it is found that the Union during this period represented a clear majority of the employees in the appropriate unit. As related above , of the 9 attendants employed by the Respondent in its washroom on May 14, 1952 , only 3 were members of the group comprising the complement employed on January 1 , 1952. The General Counsel presented no proof to show that any of the attendants hired as replacements had designated the Union as their representative . The Respondent argued at the hearing that there is no proof in this case that after January 25 , 1952, the Union represented a majority , and because it was not proved that the Union's lack of majority subsequent to that date resulted from any conduct by the Respondnet violative of the Act, it should not now be ordered to bargain with the Union. While the General Counsel did not contend that the Union 's lack of majority resulted from unlawful conduct by the Respondent, he argued that under the theory of the Suprement Court's decision in Franks Bros . Company v. N. L. R. B., 321 U. S. 702 , and the Board 's decision in Metropolitan Life Insurance Company , 91 NLRB 473 , it was not incumbent upon him to prove that the Union retained its majority subsequent to the Respondent 's unlawful refusal to bargain. The General Counsel's position is clearly supported by these precedents . "Accordingly. it is here found that the Union's majority status existing between January 7 and 21, 1952 , the period in which the unlawful refusal to bargain occurred , as hereinafter explicated , is sufficient to sustain the recommended order in this proceeding, irrespective of the reasons for any loss of majority status by the Union occurring after the Respondent ' s unlawful conduct D. The contention as to the applicability of the Railway Labor Act In support of its contention that the washroom attendants herein involved are employed by an employer subject to the Railway Labor Act and that pursuant to the provisions of Sections 2 (2) and (3) of the Act exempting such employers and its employees from the coverage of the Act the Board lacks jurisdiction in this case , the Respondent asserts that the Grand Central Terminals owners have dominant control over the operation of the washroom , or at least are joint venturers with the Respondent in the operation of the washroom and, jointly with the Respondent , are employers of the attendants who work there. This assertion is founded upon the following provisions in the concession contract between the terminal owners and the Respondent : (1) The Respondent is required to operate the washroom "according to a standard satisfactory to the Terminal Manager" ; (2) the Respondent "agrees that its em- ployees shall be neat and clean in their person and attire, polite to the patrons of the toilet room, and subject to all reasonable orders and regulations of the Terminal Manager; and that the Terminal Manager shall have the right at anytime to eject any employee of the [Respondent] who misbehaves in any manner or is rude to any patron or other person, while in or about said toilet room, or who otherwise fails to comply with any of the above require- ments"; (3) the Respondent "agrees that any person who complains about the condition of said toilet facilities or about any employee of the [ Respondent ] therein shall be referred to the Terminal Manager at Grand Central Terminal"; and (4) the contract does not call for payment of rent or any fixed sum by the Respondent for the use of the washroom facilities, 10 Thus, in the Metropolitan Life insurance case the Board said: A bargaining order being the normal remedy for a violation of Section 8 (a) (5) of the Act, the Board, with judicial approval, has held that the policies of the Act will best be effectuated by directing an employer to bargain with the representative of the employees, upon request, even though that representative, for whatever reasons , may have lost its majority status after the employer 's refusal to bargain 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but provides for retention by the Respondent of a 5 percent "management fee" with division of the net profits on the basis of 60 percent for the Respondent and the remainder to the terminal owners. The contract further provides for the furnishing of water, heat, ventilation, electricity, and repair services to the building and the permanent fixtures in the washroom at the expense of the terminal owners. The contract also expressly stipulates that the Respondent "agrees that it is and will remain an independent contractor with respect to all the services performed wider this agreement." I accord no merit to the contention that the terminal owners are joint venturers with the Respondent in the operation of the washroom. The contract between these parties expressly states their intention to create an independent contractorship relation. In the absence of elements in the contract detracting from that relationship the intention of the parties governs. The provision for the sharing of income on a percentage basis, and the requirement that the terminal owners provide utilities and other services at their expense do not alter the relation intended by the parties. These are conventional arrangements customarily found in leas--- hold or concession agreements between independent contractors. Nor do the provisions inthecontractconferring certain authority upon the terminal manager over the functions and tenure of the washroom attendants constitute the terminal owners a joint venturer or employer of the attendants. Although the contract reserves some control by the terminal owners over the attendants, this reservation is limited to the general comport- ment and appearance of the attendants, obviously to guard against injury to the prestige and reputation of the terminal for service to its patrons. The fact that the contract empowers the terminal owners to require the discharge of an attendant who misbehaves, is rude to patrons, or is unclean or improperly attired, does not of itself convert the terminal owners into an employer of the attendants absent the usual criteria establishing an employer-employee relation. 11 It is well settled that the most essential characteristic of an employer-employee relationship is the retention by the employer of the right to direct and control the manner in which the employee's work shall be performed, that is, the right to determine not merely the result but the methods and means by which such result is to be accomplished.'E Tested by this principle it is apparent that the Respondent alone is the employer of the attendants, for not only does the contract fail to retain control by the terminal owners over the per- formance of duties by the attendants, but the record shows that the Respondent exclusively directs their operations, and no employees or representatives of the terminal owners enter the washroom except to maintain the physical premises. Moreover, the contract expressly obligates the Respondent to hire and carry on its own payrolls the employees required to operate the washroom, and to assume sole responsibility for the payment of all moneys to be deducted from their earnings for social security, unemployment insurance, and other benefits, as well as for R,-deral and State income taxes. In view of all these circumstances I conclude that the Respondent is the sole employer of the washroom attendants. The Railway Labor Act, 45 USCA, sec. 151, et seq, provides in pertinent part, as follows: The term "employee" as used herein includes every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendi- tion of his service) who performs any work defined as that of an employee or subordinate official in orders of the Interstate Commerce Commission.... The term "carrier" includes any ... carrier by railroad, subject to the Interstate Commerce Act, and any company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad .... No evidence has been presented, nor does the Respondent contend that it is a carrier within the meaning of the Railway Labor Act, or that it is directly or indirectly owned or controlled by, or is under common control with any carrier. Essentially then, the Respondent's con- tention as to the applicability of the Railway Labor Act to the washroom attendants rests on the assumption that they are in the "service of a carrier." In view of the foregoing conclusion that the attendants are solely employed by the Respond- ent, it necessarily follows that they are not in the service of a carrier. No basis having been shown for the applicability of the Railway Labor Act in this case, the Respondent's contention 1139 C. J 1323, sec. 1526. 12 56 CJS 33, sec. 2; Citizen News Company, Inc., 97 NLRB 428. AMERICAN COIN LOCK CO., INC. 345 as to the lack of the Board' s jurisdiction based on the provisions of Section 2 (2) and (3) of the Act is rejected E. Interference, restraint, and coercion Employee Charles Smith testified that between January 12 and 15, 1952, he informed Supervisor Jenkins that Healy, the Union's chairman, wished to communicate with him, and that Jenkins replied to Smith, in the presence of employees Knowles and Brown, in the manner hereinabove related. Smith further testified that about a week after this incident with Jenkins he discussed with Foreman Crawford the number of days off from work to which he was entitled and indicated that he would seek the Union's advice in the matter, whereupon Crawford said, I don't care nothing about the Union. We are not going to have anything like that down here. We have got to get rid of you fellows, anyway. We don't want you Employee Robert McPherson testified that he had been present during the foregoing con- versation between Smith and Jenkins and heard Jenkins say he wanted "no part of Mr. Healy" and "wasn't interested in the Union " Employee John Knowles testified that he was present during the conversation between Smith and Jenkins, but only heard Jenkins say to Smith that if Healy wished to see him, Healy should come to Jenkins. He also testified that sometime before January 24, 1952, he heard Jenkins tell Crawford that he "didn't want no part of the Union " Employee Lester L. Tatum testified that around the second week in January 1952 Crawford told him, If you want to work here , you have to work under our regulations , six-day week, $39 I am a company man The Union ain't no good ; the Union can't help you, so you can take it or leave it Tatum further testified that during the same week Jenkins said to him, You guys, if you want to stay with us, you have to work under our regulations No union is coming in here, and I don't belive in any union Employee James C. Brown testified that during the first week of January 1952 Crawford remarked to him, These fellows is always hollering about the Union. This company that I work for don't even recognize the Union. Jenkins, at the time of the hearing, was no longer employed by the Respondent, and was not called as witness. Crawford denied making any statements to employees to the effect that the Respondent would not deal with a union or permit it to represent its employees, and that he deliberately avoided discussing the Union with employees. He also testified that he never saw Jenkins converse with employees, and never heard him say to employees that the Re- spondent wanted "no part of Mr Healy or his union." Smith's and Tatum's testimony as to Jenkins' remarks are only inferentially contradicted by Crawford. On the other hand, Smith's account of his conversation with Jenkins is sub- stantially and directly corroborated by the credited testimony of McPherson who impressed the undersigned as a forthright, sincere witness. Smith and Tatum are also regarded as reliable witnesses whose testimony is credited. It is found that Jenkins' and Crawford's remarks to Smith, and Jenkins' remarks to Tatum, clearly imported the Respondent's pre- determination not to recognize or bargain with the Union or any other labor organization regardless of its representative status, and conveyed a clear threat of reprisal against employees for their adherence to the Union. By the foregoing conduct of its supervisors the Respondent ii terfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act, and thereby violated Section 8 (a) (1) of the Act. i3 13 Augusta Bedding Company, 93 NLRB 211. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. The refusal to bargain The record incontestably shows that the Union's agent, Healy, requested the Respondent to bargain on January 3 or 4, 1952, that he again communicated with the Respondent on January 13 or 14, 1952, to renew the Union's bargaining request, and that Israelson, counsel for the Union, requested the Respondent to bargain between January 15 and 17, 1952. It is also established that with the exception of the initial request on January 3 or 4, all other requests for bargaining were made at a time when the Union represented a majority of em- ployees in the appropriate unit. Under these circumstances the Respondent was statutorily obligated to respond in good faith to these requests , and to convene within a reasonable time with the Union for the purposes of bargaining collectively This the Respondent failed to do Instead, on about January 15, 1952, it unilaterally changed the terms and conditions of employment of the attendants , and at all times pertinent indulged in dilatory, evasive tactics to avoid meeting with the Union' s representatives Rowse's explanation for his failure to contact Israelson after their conversation between January 15 and 17 is unimpressive As to his asserted need for time to obtain legal advice, he admitted that he had been advised by Moorhouse , the terminal manager , as far back as December 28, 1951, to seek such advice, and plainly conceded that the Respondent had not sought such advice but had relied upon its experience in these matters I am not convinced that Rowse delayed bargaining , after Israelson' s call, to obtain legal advice Equally un- convincing is the explanation that the Respondent' s delay was justified by "complications" arising from the alleged "approach" by the Brotherhood of Railway and Steamship Clerks. As noted, the Brotherhood had requested the terminal owners on January 2, 1952, to give the work in the washroom to employees represented by it This request was not addressed to the Respondent , nor could it reasonably have been interpreted as a bargaining request. In fact, it appeared to be so inconsequential to Rowse that he doubted whether he had raised the subject in his conversation with Israelson Finally, the Respondent's excuse for delaying meeting the Union on the ground that the washroom was a new operation and was being run temporarily on a trial basis is legally insupportable The fact that a business is being operated experimentally to determine whether it can be profitable , and that there is un- certainty as to the duration of its operation, does not excuse an employer's refusal to bar- gain" Any implication that the Respondent needed time to evaluate the situation is refuted by its imposition of new terms and conditions of employment on January 15. I am satisfied that none of the explanations offered at the hearing by the Respondent in fact played any part in its refusal to bargain with the Respondent, which I find resulted from the Respondent's desire from the time when the Union's requests were communicated to it to avoid complying with its statutory obligation to bargain with its employees' representative. In reaching this conclusion I rely upon the coercive, antiunion statements found to have been uttered by Jenkins and Crawford, the Respondent's unconvincing reasons for its failure to meet with the Union's representatives, the unresponsiveness of the Respondent to the frequent attempts by the Union's representatives to communicate with it, and the arbitrary, unilateral imposition of new terms and working conditions in the face of the Union's bargaining request. I find that this latter act, by itself, constitutes a violation of Section 8 (a) (5) of the Acts I further find that from January 13 or 14, 1952, when Healy renewed the Union's bargaining request of January 3, the Respondent refused to bargain with the Union in violation of section 8 (a) (5) and 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, 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 Respondent has engaged in certain unfair labor practices , the under- signed will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act As the Respondent on or about January 13, 1952, i4 Hoppes Manufacturing Company, 74 NLRB 853. 15 Stafford Operating Company, 96 NLRB 1217. AMERICAN COIN LOCK CO., INC. 347 and at all times thereafter , refused to bargain collectively with the Union as the representative of its employees in an appropriate unit , and through its supervisors engaged in conduct co- ercing and restraining its employees in the exercise of their rights guaranteed by Section 7 of the Act, it will be recommended that the Respondent, upon request, bargain collectively with the Union , and in the event that an understanding is reached , embody such understanding in a signed agreement, and further that it cease and desist from threatening its employees with reprisals for engaging in activities guaranteed by Section 7 of the Act or in any other way interfering with the rights of its employees freely to engage in these activities Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1 The Union is a labor organization within the meaning of Section 2 (5) of the Act 2. All attendants employed in the washroom at Grand Central Terminal, New York City, operated by the Respondent pursuant to an agreement with the owners of the terminal, ex- cluding supervisors as defined in the Act , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act 3 The Union was, on January 7, 1952, and at all times thereafter , and now is, the ex- clusive bargaining representative of the employees in the foregoing appropriate unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act 4 By failing and refusing at all times since January 13, 1952, to bargain collectively with the Union as the exclusive representative of the employees in the foregoing appropriate unit, and by unilaterally imposing terms and working conditions for these employees on January 15, 1952 , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and 8 (a) (1) of the Act 5 By interfering with, restraining , and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that- WE WILL bargain collectively upon request with Local 32-B, Building Service Em- ployees International Union, AFL, as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay , wages, hours of employment , and other conditions of employment, and if an agreement is reached, embody such understanding in a signed contract The bargaining unit is: All attendants employed by American Coin Lock Company, Inc , at the washroom operated by it at Grand Central Terminal, New York City, excluding supervisors as defined in the Act WE WILL NOT make unilateral changes in the rates of pay, wages, hours of employ- ment, or other conditions of employment of the employees in the foregoing appropriate unit without first consulting with the above union WE WILL NOT threaten employees with loss of employment because of their support of or membership in Local 32- B, Building Service Employees International Union, AFL, or any other labor organization of their choosing All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of Local 32-B, Building Service Employees International Union, 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. AMERICAN COIN LOCK COMPANY, INC., Employer. Dated ................ By.............................................................................................. (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. S. G. ADAMS COMPANY and UNITED STEELWORKERS OF AMERICA, CIO, Petitioner . Case No. 14-RC-2370. December 15, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John M. Schobel, hearing officer. The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The Petitioner and District No. 9, International Associa- tion of Machinists , AFL, the Intervenor , are labor organiza- tions claiming to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act for the following reasons: The Employer is engaged in the manufacture of metal specialty products to the order and specifications of its cus- tomers. Its main plant is located at St . Louis, Missouri. In April 1953 the Employer began operations at a second plant at Barnhart , about 25 miles distant from its main plant. The Petitioner and the Intervenor each seeks to represent produc- tion and maintenance employees at the Barnhart plant. Present operations at the Barnhart plant are on a partial scale, and consist principally of a training program, under which some overflow work from the St. Louis plant is being handled to relieve congestion at the older plant and afford training opportunities at the new location . Meanwhile, the Barnhart plant is undergoing extensive renovation ; and per- manent electrical systems for adequate power and light, and heating units , and other necessary facilities and equipment are being planned , ordered, or installed . This work will not be completed for some months. Employees for the Barnhart plant are locally hired from time to time . At the date of the hearing there were 28 unclas- 107 NLRB No. 90.