The Baker and Taylor Co.

THE BAKER AND TAYLOR CO. 245 TTTE BAKER AND TAYLOR Co. and LOCAL 32, OFFICE EMPLOYEES INTER- NATIONAL UNION, AFL. Case No. 2-CA-3V6. July 20, 1954 Decision and Order On January 12, 1954, Trial Examiner Arthur E. Reyman issued his, Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair- labor practices in violation of Section 8 (a) (5) and (1) of the Act,, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in a copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Intermediate Report. The Respondent also, filed a supporting brief. The Respondent's request for oral argument is hereby denied because the record and the exceptions and brief, in our opinion, adequately present the issues and the positions of the parties. 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 considered the Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions and modifi- cations : 1. The Trial Examiner found that the Respondent, in violation of Section 8 (a) (5) and (1) of the Act, has refused and continues to refuse to bargain collectively with Local 32, as the certified bargain- ing representative of the employees in the appropriate unit. The Re- spondent excepted to this finding on two grounds : (a) That the group of manual employees, for whom Local 32 had been certified as repre- sentative by the Board, is not in fact an appropriate unit, and (b) that Local 32 was no longer the representative of a majority of employees in such unit at the time of its demand for bargaining. For the reasons set forth herein we find the Respondent' s exceptions to be with- out merit. (a) On May 13, 1953, the Respondent entered into agreements with Local 32 for consent elections in separate units of its "manual" and "clerical" employees. On June 12, 1953, as the result of the elections held pursuant to these agreements, Local 32 was certified as repre- sentative of the employees in the manual unit. The Respondent now contends that, despite its agreement that the manual unit was appro- priate for purposes of the consent election, such a unit is in fact in- appropriate,' and that the Trial Examiner erred in adopting the con- I The Respondent asserts that it agreed to elections in separate manual and clerical units, only because a Board agent told it that the Board probably would not approve a single unit and because it did not then realize that the separate units would cause conflict and d,ssension such as had existed previously at a time when there were separate units. 109 NLRB No. 38 246 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD sent-election stipulation as the basis of his unit finding rather than making his own independent unit determination. In support of this contention the Respondent asserts that because the Board has not de- termined the unit upon the basis of a record made at a formal hearing, as distinguished from the parties' consent stipulation, the issue of unit appropriateness remains in fact unresolved, a fact which the Trial Examiner should have recognized. We do not agree with this contention. It has long been the Board's policy not to permit relitigation, in a proceeding based on charges of refusal to bargain, of the issues decided in a prior representation pro- ^ceeding. In the absence of evidence of changes in the facts surround- ing a prior unit determination, or the discovery of evidence unavail- able to the respondent in the representation proceeding, the Board has uniformly refused to redetermine unit issues in an unfair labor prac- tice proceeding.2 This principle is applicable equally to cases in which the necessary facts are determined by the Board upon the record of a hearing and to cases in which the parties have consented to expedite resolution of a question of representation by agreeing to the deter- minative facts for purposes of conducting an election. The consent election is a well-established time- and labor-saving device, and its validity is specifically recognized by the provisions of the amended Act.' The Act makes no distinction as to validity or effect, between a certification resulting from an election pursuant to a consent-election agreement and a certification resulting from an election directed by the Board after a formal hearing. The courts have uniformly recog- nized the right of parties to waive a formal hearing and to enter a binding agreement for a consent election.' 2 American Finiihvng Company, 90 NLRB 1786, Clark Shoe Company, 88 NLRB 989 ; West Texas Utilities Company, 106 NLRB 859; N. L. R B. v Worcester Woolen Mills Corp, 170 F. 2d 13 (C A. 1), cert denied , 336 U S 903 , Pittsburgh Glass Company v. N. L R. B., 313 U S 146. Allis-Chalmers Mfg Co v N L R B, 162 F 2d 435 (C A 7) ; N. L R B. v. West Kentucky Coal Co, 152 F 2d 198 (C A 6) s Section 9 (c) (4) provides that. Nothing in this section shall be construed to prohibit the waiving of heaiings by stipulation for the purpose of a consent election in conformity with regulations and rules of decisions of the Board. Sections 102 54 and 101 18 of the Board 's Rules and Regulations implement the statutory approval of consent elections by providing the procedures for the parties ' agreements and for the conduct of such elections 4 Thus the Court of Appeals for the Ninth Circuit said that such an agreement is "a contract, and, as such , its provisions , if not otherwise contrary to law are valid and binding upon the parties , who have expressed their mutual assent thereto " N L. R B. v. Carlton Wood Products, 201 F 2d 863 The First Circuit described the agreements as a "limitation on review" of the representation proceeding , observing that a "narrow interpretation thereof would thwart the utility of the device of consent election," and that "these agreements are aimed at the expeditious settlement of election disputes." N. L. R B. v Saxe-Glassman Shoe Corp , 201 F. 2d 238 The Eighth Circuit said that the purpose of a consent-election agreement is "to provide for a prompt and final settle- ment of such controversies as may arise between the parties and thus minimize the delay in the administration of the Act," and that "no reason appears why the company should not be bound by the provisions of the election agreement , to which it is a party " Semi- Steel Casting Co. v N. L. R B , 160 F 2d 388, cert denied 332 U S 758 The Sixth THE BAKER AND TAYLOR CO. 247 The reasons for the use of informal preelection procedures in repre- sentation cases are readily apparent. Consideration of the desires of the parties as to the composition of a bargaining unit always has been recognized by the Board as an important factor in promoting collective bargaining and in stabilizing labor management relations. Thus it is not only because of their value in saving the expenditure of effort and time by the Government, but also because of their tendency to promote stability in labor management relations, and to expedite the settlement of labor disputes, that consent-election agreements have be- come a well-recognized device in the administration of the Act. The Respondent has offered no satisfactory explanation why its stip- ulation as to unit in the representation proceeding should be dis- regarded and an independent unit determination now made by the Board. It does not contend that the unit stipulated was so arbitrary as to make its approval an abuse of discretion by the Regional Direc- tor. Nor does it contend that evidence relating to the unit, which it was permited to adduce at the hearing in the present case, is newly dis- covered, unavailable to it at the time of the representation proceeding, or shows any change in the facts underlying its agreement for a con- sent election. Moreover, the evidence introduced by the Respondent at the hear- ing in this case fails to persuade us that the unit of manual employees is in fact inappropriate. While such evidence may indicate that a single unit of all employees in the book wholesaling operations might also be appropriate, we do not believe that it shows that such an over- all unit is the only appropriate unit, or that there is no reasonable basis for the separation of employees into the separate units of manuals and clericals. The evidence discloses that the work of the manual group, comprising such employees as stock and order, checking,, packing, and shipping department employees, consists primarily in physically han- dling the books. On the other hand, the clerical group, composed of the employees in the buying, selling, credit, and claims departments, is engaged in work typical of office and clerical employees and not in- volving manual labor. Except for 12 to 15 employees out of the total of 138 in the clerical unit, the clerical employees are located in the Em- ployer's offices and do not regularly come in contact with the manuals, whose place of work is in the stockroom and shipping and receiving section.. The clericals and manuals are separately supervised. The history of collective bargaining in the plant shows that for a substan- tial number of years bargaining was conducted for clericals and manu- als as separate groups. The pattern was changed to that of an overall unit in April 1952 when Local 32 became the bargaining representative Circuit construed a consent-election agreement as a "waiver" of any right to a formal proceeding before the Regional Director N L B B. v Standard Transformer Company, 202 F. 2d 846 , and stated that in absence of fraud or gross mistakes the consent, election agreement may not be set aside N L R 13 v Volney Felt Mills, Inc, 210 F 2d 559 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for both groups, and continued on that basis only until June 1953 when the consent election involved in this case was held. Accordingly, both on the ground of the parties' stipulation, and on the basis of the facts now before us, we find that the unit of manual employees for which Local 32 was certified on June 12, 1953, con- stitutes a unit appropriate for collective-bargaining purposes within the meaning of Section 9 (b) of the Act.' (b) At the hearing the Respondent offered in evidence an employee petition purporting to have been signed by a majority of employees in the unit of manuals repudiating Local 32 as their bargaining agent. The evidence was rejected by the Trial Examiner on the ground that the Board's certification of Local 32 on June 12, 1953, could not be questioned within the certification year. The Respondent then offered to prove that on July 1, 1953, when it refused to bargain with the local, it came into possession of an employee petition signed by 33 out of approximately 50 employees in the unit of manuals,c, revoking their designation of Local 32 as their bargaining representative, and that this revocation was not induced by any unfair labor practices of the Respondent. This offer of proof was likewise rejected by. the Trial Examiner. The Respondent has excepted to this ruling, con- tending that inasmuch as Local 32 had been repudiated by a majority of the employees in the manual group'before the Respondent refused to bargain with Local 32, and as this repudiation was not brought about by any unfair labor practices, the Respondent's subsequent refusal to deal with Local 32 was not violative of Section 8 (a) (5) or (1) of the Act. We do not agree. It is a well-established Board rule that, in the absence of unusual or special circumstances, a Board certification of a bargaining repre- sentative.must be honored for a reasonable period, usually at least a year following the certification, despite evidence of repudiation or loss of .majority by such bargaining representative.' The rule is 5 Garden State Hosiery Co ., 74 NLRB 318 , 324 where the Board sai d* "It may well be that the unit found here is not the perfect unit But the statute does not requite that it be perfect , or the best possible, or the ultimate ; it iequues only that the unit be appropriate." "The tally of ballots cast at the June 4 . 1953, election shows that the approximate number of eligible voters in the unit of manuals was 58. 7 Henry Heide, Inc , 107 NLRB No 258 N L R Il v Ray Brooks, 204 F 2d 899 (C. A 9), cert. granted March 1954 To the extent that this statement of the Board 's so-called "one-year i tile" is intended to hold that despite a clear and uncoeiced loss of majority a union continues throughout the certification year to be the statutory bargaining reps esentative of the employees, Member Rodgers does not agree . He is of the opinion that once a reasonable period of time, as measured by the circumstances of the individual case . has elapsed since the election and, certification , it is "violative of the spirit and the very letter " of, the Act for the -Board to require employees to continue to be represented by an agent ( union) which they themselves for reasons of their own have repudiated N. L R. B. v. Globe Automatic Sprinkler Co. of Pennsylvania , 199 F. 2d 64 , 70 (C. A. 3 ). Applying this rule to the instant case, Member Rodgers would find that under the circumstances a lapse of 6 weeks between the Union's certification and repudiation did not constitute a reasonable period of time and that therefore the employer 's duty to bargain continued THE BAKER AND TAYLOR CO. 249 intended to give effect to the policy of the Act to stabilize industrial relations and it is based on the Board's experience that a period of at least a year is needed to assure employees, through their newly certified representative, an opportunity to establish a functioning collective-bargaining relationship.8 Examination of the record in this case does not disclose the existence of any special or unusual circumstances which would exempt the Respondent from the application of this rule. The evidence proffered by the Respondent tends merely to show that within 6 or 7 weeks after the Board's certification of Local 32 on June 12, it came into possession of a revocation petition purporting to have been signed by 33 out of 50 or 58 employees in the unit of manuals. The petition appears to recite no reasons other than that the signers believe the unit to be inappropriate in view of the rejection by the clericals of collective-bargaining representation at the June 4, 1953, election. The petition states that in these circumstances the existence of a bar- gaining agent for the manuals alone would "cause a great deal of bad feeling between the clerical workers and the manual workers." We do not find in these asserted reasons, however, special or unusual circumstances such as might justify an exception to the rule.9 We find, as did the Trial Examiner, that the Respondent, by refus- ing on or about July 1, 1953, and thereafter to bargain collectively with Local 32 as the certified bargaining representative for the unit of manual employees violated Section 8 (a) (5) and (1) of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations 8 18 Ann . Rep. 43. In adopting the Board ' s certification -year rule the Court of Appeals for the Second Circuit has said The purpose of the Act is to insure collective representation for employees, and to that end ¢ 9 gives power to the Board to supervise elections and certify the winners as the authorized representatives . Inherent in any successful administration of such a system is some measure of permanence in the results: freedom to choose a representative does not imply freedom to turn him out of office with the next breath. As in the case of choosing a political representative , the justification for the franchise is some degree of sobriety and responsibility in its exercise Unless the Board has power to hold the employees to their choice for a season , it must keep ordering new elections at the whim of any volatile caprice ; for an election , conducted under proper safeguards , provides the most reliable means of ascertaining the deliberate will of the employees. N. L. R. B. v. Centwry Oxford Mfg Corp., 140 F. 2d t41, 542-3 ( C. A 2), cert. denied 323 U. S 714. 0 Celanese Corporation of America, 73 NLRB 864 . In a recent case (Henry Heide, Inc., 107 NLRB 1160) the Board also found that the mere filing by an employer of a representa- tion petition for a redetermination of the status of a certified agent, or a filing of a decertifi- cation petition by a rival union was not an "unusual circumstance " that would relieve the employer from his obligation to bargain with the certified agent within the certification year, 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board hereby orders that the Respondent, The Baker and Taylor Co., its officers, agents, successors, and assigns, shall : 1. Cease and desist from refusing to bargain collectively with Lo- cal 32, Office Employees International Union, AFL, as the exclusive representative of its stock and order, checking, packing, and shipping department employees, including list boys and stock counter em- ployees at its Hillside plant, but excluding office clerical and profes- sional employees, guards, watchmen, porters, and all supervisors as defined in 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 Local 32, Office Em- ployees International Union, AFL, as the exclusive representative of the employees in the bargaining unit hereinabove described with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and if an understanding is reached embody it in a signed agreement. (b) Post at its Hillside plant copies of the notice attached to the Intermediate Report and marked "Appendix A." 10 Copies of said notice, to be furnished by the Regional Director for the Second Re- gion, shall, after being duly signed by a representative of the Re- spondent, be posted by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to the employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for the Second Region, in writ- ing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. "This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order " In the event that 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 " Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding was commenced by the issuance , on January 24, 1953 , of a com- plaint by the General Counsel of the National Labor Relations Board, by the Re- gional Director for the Second Region , against The Baker & Taylor Co., alleging in substance that The Baker & Taylor Co., on or about July 1, 1953, and at all times thereafter "did refuse and continues to refuse" to bargain collectively with Local 32, Office Employees International Union, AFL, as the exclusive representative of all the employees in an appropriate bargaining unit in respect to rates of pay, wages, hours of employment, or other conditions of employment, in contravention of Section 8 (a) (1) and (5) of the National Labor Relations Act, as amended ( 61 Stat. 136), herein called the Act . (For convenience, these parties are herein sometimes called respec- tively, the General Counsel, the Board , the Regional Director , the Respondent, THE BAKER AND TAYLOR CO. 251 and Local 32.) Prior thereto, on July 7, 1953, Local 32 had filed a charge with the Regional Director, alleging that: Said company ever since the 12th day of June, 1953, to and including the present date, has refused and still continues to refuse to bargain collectively in good faith with Office Employees International Union, Local 32, which said Local has been certified by the National Labor Relations Board as the collec- tive bargaining agent of the employees in the unit known as the "manual" unit of employees, consisting of all stock and order, checking, packing and shipping department employees, as well as list boys and stock counters. The Respondent filed a timely answer to the complaint, and effectively denied therein the substantive allegations of contraventions of the Act; and for further de- fenses said: ". . . admits that on or about the date alleged, at an election conducted for the group of employees, not constituting an appropriate unit . . . 29 of the employees in that group voted for the Union and 21 against," and moved that the complaint should be dismissed because, it said, (a) that a majority of the employees in the alleged unit have notified the Respondent in writing of their desire not to have the Union represent them and have requested the Respondent not to deal with the Union as their representative; and (b) that the collective bargaining unit alleged . is inappropriate, all as set forth in the Respondent's petition to vacate certification and to set aside the election now pending before the Board in Case No. 2-RC-5825. On the issues raised in the complaint and answer and pursuant to notice, a hear- ing was held before the undersigned Trial Examiner at New York, New York, on November 2, 1953. At the hearing, all parties were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, to introduce evi- dence bearing on the issues, to argue orally upon the record, and to file proposed find- ings of fact and proposed conclusions of law were afforded each party. Upon the entire record of the case, from his observation of the witnesses, and after full consideration, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, The Baker and Taylor Co., is and has been since 1906 a corpo- ration duly organized under and existing by virtue of the laws of the State of Connecticut. Since about the year 1950, the Respondent has maintained its princi- pal office and place of business at North Broad Street, in the town of Hillside, county of Union, and State of New Jersey, and is now and has been continuously engaged at said plant in the manufacture, sale, and distribution of books and related products. During the year 1952, the Respondent, in the course and conduct of its business opera- tions, caused to be purchased, transferred, and delivered to its Hillside plant, books and other materials valued at in excess of $1.000,000, of which approximately 90 percent was transported to its Hillside plant in interstate commerce from States of the United States other than the State of New Jersey. During the year 1952, the Re- spondent, in the course and conduct of its business operations, caused to be sold at its Hillside plant, books valued at in excess of $1,000,000, of which approximately 90 percent was transported from its Hillside plant in interstate commerce to States of the United States other than the State of New Jersey.' The Respondent is and has been at all times material hereto engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 32, Office Employees International Union, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE REFUSAL TO BARGAIN A. Background Prior to the year 1950, the Respondent was engaged in business in New York City as a book jobber. In 1944, it entered into a collective-bargaining agreement with 1 The Respondent Is a wholesale book seller, selling to book stores, boards of education, and public institutions It stocks about a half million books and its annual turnover is approximately 3 million volumes. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Book and Magazine Union, Local 18, United Office and Professional Workers of America, CIO, herein called Local 18, as the representative of employees (except supervisory and clerical employees) in its stock, and order, checking, receiving, packing, and shipping departments as well as list boys and stock counters. These employees constituted an overall group known as manual (warehouse) employees. This group historically, by name, is a different one than the clerical group, mentioned below. During the time the Respondent was engaged in business in New York City and shortly after Local 18 became the bargaining representative of the manual employees, an independent union, subsequently affiliated with the American Federation of Labor, was formed to represent the clerical employees as distinguished from the manual employees. In the year 1950 the Respondent moved its plant to Hillside, New Jersey. Where in New York it was housed on 3 floors of a comparatively old building, in Hillside it occupied a modern, new building, permitting all activities on 1 floor. During 1950, after the move, Local 18 disappeared as bargaining agent for the manual employees. On November 13, 1950, Local 153, Office Employees International Union, AFL, herein called Local 153, filed a petition for certification as representative of the manual employees at the Hillside plant, and an agreement between the Respondent and Local 153 for a consent election was approved by the Regional Director on June 28, 1951. After an election, a majority of the employees in this unit having voted for Local 153 as their representative for the purposes of collective bargaining, Local 153, on September 13, 1951, was certified by the Board as such representative (Case No. 2-RC-3095). On January 17, 1952, the Respondent petitioned the Board for an election after a claim by Local 153 that it represented all employees, manual and clerical; and on January 30, 1952, filed a request for withdrawal of that petition, which was approved (Case No. 2-RM-360). The manual and clerical employees were on strike from November 29, 1951, until January 29, 1952. Thereafter, on April 5, 1952, the Respondent and Local 153 entered into a collective agreement, covering all permanent clerical and manual (warehouse) employees which by its terms was to remain in effect until at least through May 31, 1953. On April 23, 1953, the Respondent filed a petition for an election, asserting that a majority of permanent clerical and warehouse employees had indicated in writing that they did not wish Local 153 to represent them in negotiations (Case No. 2-RM- 496). Local 32, on May 1, 1953, filed its petition with the Board for certification as representative of the permanent clerical and warehouse employees (Case No. 2-RC-5825). Thereafter, the Respondent was permitted to withdraw its petition in Case No. 2-RM-496, and on May 13, 1953, entered into stipulations with Local 32, agreeing to consent elections to be conducted by the Regional Director to deter- mine whether the employees in the so-called manual unit and the employees in the so-called clerical unit (i. e., a majority of the employees in each unit), desired to be represented for the purposes of collective bargaining by Local 32. The elections were conducted under the customary procedures of the Board on June 4, 1953; the clerical unit rejected Local 32 as representative by a vote of 33 for and 87 against, out of 138 eligible voters; the manual unit voted 29 for and 21 against out of 58 eligible voters, and that resulted in the certification, on June 12, 1953, of Local 32 as the representative of the manual (stock and order) employees, in Case No. 2-RC-5825. On June 22, 1953, Local 32, in a letter to counsel for the Respondent, through its business representative, suggested : "We are ready to negotiate an agreement"; counsel for the Respondent, by letter dated July 1, 1953, said in part: I have been advised by the Company today that it has received a petition signed by a substantial majority of the employees in the manual group in which they request the Company not to recognize Local 32 as their collective bargaining representative. . . . In view of these unforeseen and unusual circumstances the Company had requested me to prepare and file with the National Labor Relations Board a petition to vacate the certification of Local 32 and to set aside the election. . . Under the circumstances, the Company must accede to the wishes of a majority of the employees in the manual group and therefore must refuse to meet with you to negotiate any agreement. On July 20, 1953, the Board received a petition filed on behalf of the Respondent to vacate certification and to set aside the election. in Case No. 2-RC-5825. Counsel" for the Respondent, in their brief filed in support of the petition, argued forcefully on two points : First, that to require the employer to deal with a union repudiated THE BAKER AND TAYLOR CO. 253 by a majority of the employees in the unit, absent unfair labor practices by the employer, would be contrary to the purposes of the Act, and second, the unit desig- nated by the Board would, in view of the bargaining history of the employer, be inappropriate.2 On July 30, 1953, the Board directed the entry of an order denying the petition of the Respondent to vacate and set aside. B. The appropriate unit The Respondent contends that the duties of the so-called manual' employees and those of the clerical employees are in many respects the same, and frequently over- lap, and that when each group was represented by a different union each union was required to interchange employees. The evidence received at the hearing in this case seems to bear out this contention to a considerable extent, although there is credible testimony the other way. However, it is not the function or the province of the Trial Examiner to pass upon the question of whether the manual group is or is not an appropriate bargaining unit. Local 32 has been certified, under the Act and accord- ing to the established procedures of the Board, as the representative of the manual group of employees of the Respondent. The processes provided by Section 9 of the Act and the Rules and Regulations of the Board are investigatory in nature and are not adversary, as has been often held. Under Section 9 (b) of the Act, "the Board may decide that all employees of a single employer form the most suitable unit for the selection of collective bargaining representatives, or the Board may decide that the workers in any craft or plant or subdivision thereof are more appropriate." Pittsburgh Plate Glass Co. V. N. L. R. B., 313 U. S. 146, 152. The decision of the Board in such case, if not final, is rarely to be disturbed. Packard Motor Car Co. v. N. L. R. B., 330 U. S. 485, 491. Here, the Board has lately considered the contention of the Respondent that the manual group of employees do not constitute an appropriate bargaining unit, and has rejected the contention. The facts advanced by the Respondent were contained in an affidavit'filed in support of this petition to vacate the certification of Local 32, and must have been considered by the Board before it denied that petition.3 P The facts in support of this argument will be briefly discussed below. 3 The affidavit of the assistant secretary of the Respondent, verified July 15, 1953, in support of the petition, reads as follows : Melvin J Beauman, being duly sworn on his oath, deposes and says that he is the Assistant Secretary of The Baker & Taylor Co., a corporation organized and existing under the laws of the State of Connecticut; that on the 6th day of July, 1953 he received from employees of the Company Petitions signed by thirty-three of the manual group employees requesting the Company not to recognize Local 32, Office Employees International Union as their collective bargaining representative. The full text of the Petitions, excluding signatures is as follows . We, the undersigned employees of The Baker & Taylor' Co , Hillside,: New Jersey in the manual group respectfully urge the Company not to iecognize Local 32, Office Employees International Union as our collective bargaining representative since we do not wish to be represented by that Union in the future The reason we do not wish Local 32 to repiesent us in the future is because of the following facts : (1) In the past, as at present, there was a very close relationship in work- ing conditions between the clerical group of employees and the manual group of employees of the company (2) For the last two yeais of so the contract has covered both clerical and warehouse as one. (3) Before such period, even though the manual and clerical had separate contracts we had the same Union and the conditions were practically the same. (4) During the recent election the clerical group voted by a big majority against representation by the Union and the manual group, which is a much smaller one, voted in favor of the Union by a very small majority The result is that the big majority of the employees of The Baker & Taylor Co. don't want a Union to represent them and we feel that it will cause a great deal of bad feeling between the clerical workers and the manual workers if we were to continue to have the Union represent us in the manual group We also feel that this could very easily lead to dissension affecting all the employees and we don't want to have the Union represent us in the future. The total number of employees in the manual group df employees is 52 The'33 signatories to the Petitions accordingly comprise more than a majority of that group. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . The Trial Examiner deems himself bound by the actions of the Board, and for the purposes of this case considers that Local 32 is the bargaining representative of that unit of the employees of the Respondent called and comprised of the manual group .4 C. The asserted repudiation of Local 32 as bargaining representative The gravamen of this matter lies in the refusal of the Respondent to negotiate with Local 32 as the certified representative of the unit comprised of its manual employees. At the hearing, the Trial Examiner permitted the introduction in evidence of the petition of the Respondent to vacate the certification of Local 32 and to set aside the results of the election (among the manual group employees ) which preceded the certification of Local 32. An affidavit attached thereto, verified July 15, 1953, in support of the contention of the Respondent that the majority of the employees in this unit repudiated Local 32 as their bargaining representative, reads as follows: Melvin J. Beauman, being duly sworn on his oath, deposes and says that he is the Assistant Secretary of The Baker & Taylor Co , a corporation organized and existing under the laws of the State of Connecticut ; that he has participated in the handling of the Company's labor relations since some time prior to 1948, that prior to the recent elections conducted by the National Labor Relations Board on June 4, 1953 , the clerical group of employees were represented by Local 153, Office Employees International Union, AFL, for approximately five years ; that the manual group of employees in the Company were at first represented by a CIO union; and that as a result of the difference in representa- tion there was frequent conflict between the two groups , and strikes and unrest resulting from that condition. As a result, in part, of that situation, the manual group in the fall of 1950 left the CIO and switched to the same Local and Union which represented the clerical group. The first negotiations thereafter were conducted for the two groups at different conferences even though the Union officials participating in the negotiations were the same and a single contract was executed finally cover- ing the employees of both groups . Thereafter the discontent ceased and the conflict between the groups terminated. When the Company filed a Petition for an Election on April 23, 1953, it filed a Petition for a single unit consisting of both clerical and manual employees. Similarly, when Local 32 of the same Union filed a Petition for Certification it also included both clerical and manual groups in a single unit. It is clear, therefore, that originally both the Company and the Union, as well as the employees, thought in terms of a single unit as being appropriate for both groups of employees. At an informal conference at the New York offices of the National Labor Relations Board, Local 32 refused to consent to an election unless voting was conducted separately in the manual and clerical groups. It was only as a result of the assertion of the Board representative at the conference at which the Stipulation for Certification Upon Consent Election was entered into; to the effect that the Board would probably not approve a single appropriate collective bargaining unit for these two groups , that the Company agreed to separate the groups for the purposes of the election. We did not realize until after the election that there would be recreated the conflict and dissension that had plagued the Company and its employees before the single unit was established in 1952. As a result of the actual vote by which Local 32 won the election in a small unit by a bare majority and lost it overwhelmingly in the larger unit, it is clear that a majority of the employees in the manual group no longer wish the Union to represent them further , because of the likelihood of further rebirth of industrial strife by reason of collective bargaining for one group which even in its total number comprises substan- tially less than a majority of all the employees who previously bargained as one group. The Trial Examiner rejected the offer by the Respondent of the original petition, referred to by Mr. Beauman , in the affidavit immediately above quoted and, in his testimony, in -sustaining, an objection to the effect that the petition is immaterial to * Counsel for the Respondent has argued that because the election was a so-called consent election , the unit in question has not been adjudicated by the Board The Trial Examiner believes that in the instant proceeding the issue is not litigable THE BAKER AND TAYLOR CO. 255 the issues in this case because, under prior decisions of the Board, the certification of Local 32 (on June 12, 1953) must be held to be good for a period of 1 year, and that there was no evidence at that point in the hearing, that Local 32 had lost its majority during the certification year. Counsel for the Respondent at the time made offer of proof, which was rejected, To prove through witnesses and documents that there was presented to the Company, on July 1st, a petition signed by 33 out of approximately 50 em- ployees then in the so-called manual unit, requesting the Company not to deal with the Union which had been certified as Local 32, AFL, certified in Case No. 5825 . . . that the petition was submitted to the Respondent without the intervention of any unfair labor practice on behalf of the Respondent. The Trial Examiner, in rejecting the offer of proof, was and is now cognizant of the implications of the decision of the Court of Appeals for the Sixth Circuit in Mid-Continent Petroleum Corp. v. N. L R. B, 204 F 2d 613, cert. denied 346 U. S 856, upon which the Respondent heavily relies. To him, however, the factual situations in that case and this are vastly different. There, a small unit of employees, at exact times and for personal reasons or because of individual fortuity of circum- stance (as was clearly shown in each instance) had forsaken the bargaining repre- sentative. Here, the facts as disclosed by the proceedings in Case No. 2-RC-5825 (and in prior Board proceedings in Cases Nos 2-RC-3095, 2-RM-360 and 2-RM-496), show a greatly dissimilar history of collective bargaining between the Respondent as an employer and the representatives of the manual employees as a unit, the clerical employees as a unit, and the two groups as a single unit. The Respondent here, perhaps with some justification, takes the position that in all good faith it agreed to an election among its employes in two separate units, and then later found itself in the position of being required to deal with Local 32 as the representative of a group of employees in which the majority had signified their desire not to be so represented. In taking that position, the Respondent overlooks the obvious irresponsibility or inexperience of the individuals within that group who, first having voted for the Union as their representative, then took a second look and decided they should have voted the other way. Stability of labor relations, under the theory of the Act, would be nullified should the Board agree that an employee may think one way on a day of election, and then have the right to disavow his vote a month later for whatever his personal reason might be The Trial Examiner adheres to the principle that certifications by the Board based upon secret ballot elections must be effective for a reasonable period, and during that time even revocations of designations , except in unusual situations , should not impair the validity of the certificate. N. L. R. B. v. Appalachian Electric Power Co., 140 F. 2d 217 (C. A 4); and see N L. R. B. v. Whittier Mills Co , 111 F. 2d 474 (C. A. 5), Reeder Motor Company, 96 NLRB 831, Poole Foundry & Machine Co. V. N. L. R. B., 192 F. 2d 740 (C. A. 4), cert. denied 324 U. S. 954; N. L. R. B. v. Sanson Hosiery Mills, inc., 195 F. 2d 350 (C. A. 5). The Board, in Stanolind Oil & Gas Company, 98 NLRB 973, determined that the employer there by refusing to bargain collectively with the certified union as repre- sentative of a unit previously found to be appropriate, was guilty of unfair labor practices in violation of Section 8 (a) (5) of the Act. When that employer refused to comply with the order of the Board, requiring it to bargain with the union, the Board brought enforcement proceedings under Section 10 (e) of the Act. The Court of Appeals for the Tenth Circuit, in ordering enforcement of the order of the Board, reviewed the facts found by the Trial Examiner concerning the findings of the Board in its determination of an appropriate bargaining unit, and recalled the general rule that under Section 9 (c) of the Act, the judicial function of the courts in relation to the processes of the Board in representation proceedings is confined to a guaranty against arbitrary and irrational Board action. N. L. R B. v. Stanolind Oil and Gas Co., 208 F. 2d 239 (C. A. 10). Concluding Findings Local 32 is a labor organization certified by the Board as the representative of the employees of the Respondent in the unit comprised of all stock and order, checking, packing, and shipping department employees of the Respondent employed at its Hillside, New Jersey, plant, including list boys and stock counter employees, but excluding all office clerical employees, professional employees, guards, watch- men, salesmen , and supervisors. The Respondent, since the certification of Local 32 as such representative, has refused and continues to refuse to bargain collectively with Local 32 as the repre- 256 DECISIONS OF NATIONAL LABOR RELATIONS 130ARD sentative of the employees in the above-described unit, and by such refusal con- travened and continues to contravene the provisions of Section 8 (a) (5) of the Act. Further, by refusing to bargain collectively with Local 32, as, such represent- ative, the Respondent has contravened and continues to contravene the provisions of Section 8 (a) (1) of the Act, in that such refusal has the necessary effect of interfering with, restraining, and coercing employees of the Respondent in the rights guaranteed to them under Section 7 of the Act. The Respondent during its -refusal so to bargain with Local 32 has committed no other unfair labor practice. However, under the prior holdings of the Board, and under the weight of judicial authority, it fell into error when it refused to negotiate and deal with Local 32. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section 1, above, have a -close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral 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, since on or about July 1, 1953, and at all times thereafter refused and continues to refuse to bargain collectively with Local 32 as the exclusive representative of its employees in an appropriate unit and having found further that the Respondent has failed and refused to bargain collectively with Local 32 with respect to wages, hours of employment, and conditions of employment, and all other matters as required by the Act, and by so doing has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, it will be recommended that the. Respondent cease and desist therefrom. On the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 32, Office Employees International Union, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By refusing and continuing to refuse to bargain collectively with the said Local 32 as the exclusive representative of its stock and order, checking, packing, and shipping department employees, including list boys and stock counter employees (but excluding office clerical and professional employees, guards, watchmen, porters, and all supervisors as defined in Section 2 (11) of the Act) the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 3. By refusing and continuing to refuse to bargain with Local 32, as aforesaid, the Respondent has interfered with and continues to interfere with the rights guar- anteed to its employees under Section 7 of the Act, and thereby has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a) (1) of the Act. 4. The above-described labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL BARGAIN collectively, upon request, with Local 32, Office Employees International Union, AFL, as the exclusive representative of the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment. The bargaining unit is: All stock and order, checking, packing, and shipping department employees, including list boys and stock counter employees, but excluding all office THE RUBEROID COMPANY 257 clerical and professional employees , guards, watchmen, porters, and all supervisors as defined in the National Labor Relations Act. THE BAKER & TAYLOR Co., 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. THE RUIBEROID COMPANY and UNITED CEMENT, LIME AND GYPSUM- WORKERS INTERNATIONAL UNION, AFL, PETITIONER THE RUBEROID COMPANY and DISTRICT LODGE No. 96, LOCAL LODGE No. 23, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, PETITIONER. Cases Nos. 10-RC-2773 and 10-RC-2776. July 21, 1954 Decision and Direction of Elections Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before Philip B. Cordes, 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 meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.2 3. Questions affecting commerce exist concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Employer is engaged in the production of asphalt shingles at various plants, of which only that at Savannah, Georgia, is involved in this proceeding. TAM seeks to represent a unit of all the mainte- nance employees at this plant. The other labor organizations and the Employer contend that only a production and maintenance unit is ap- propriate. There is no bargaining history at this plant. The eight maintenance employees whom the TAM seeks to represent are classified as lead mechanic,3 mechanic A and B, mechanic helper, and oiler. The Employer's plant operates on two shifts and a me- chanic and helper are assigned to each, with the duty of attending the 1 The hearing officer referred to the Board the Employer's and the Gypsum Workers' motions to dismiss the IAM petition in Case No. 10-RC-2776 on the ground that the unit there sought is inappropriate . For the reasons stated in paragraph numbered 4 the motions are denied. 2 International Brotherhood of Pulp , Sulphite and Paper Mill Workers , AFL, herein called the Intervenor , was permitted to intervene in Case No. 10-RC-2773 at the hearing on the basis of a proper showing of interest. 3 All parties agree that this individual is not a supervisor within the meaning of the Act. 109 NLRB No. 51.