Botany Worsted Mills

In the Matter of BOTANY WORSTED MILLS and TEXTILE WORKERS -UNION OF AMERICA, C. I. O. Case No. C-1988.-Decided May 25,1942_ Jurisdiction : woolen and worsted fabrics manufacturing industry. Unfair Labor Practices Collective Bargaining: majority established by election and certification of union-refusal to bargain collectively by: refusal to recognize union; dilatory tactics ; insistence that majority of employees in appropriate unit since election ceased to desire representation by union, as justification for refusal to bargain collectively, held without merit ; evidence of, but not explaining change of mind of employees shortly after election, held insufficient; presumption of union's continuing majority status established by Board election not rebutted by "newly discovered evidence" offered months after certification although in respondent's possession prior to certification. Remedial Orders : employer directed to bargain collectively. Unit Appropriate for Collective Bargaining : all wool sorters or trappers, including overlookers. Mr. Daniel R. Dimick, for the Board. Putney, Twombly & Hall, by Mr. Frederick R. Sanborn, Mr. Louis H. Hall, Jr., and Mr. William C. Treanor, of New York City, for the respondent. Mr. Alfred Udoff, of New York City, for the Union. Mr. Armin Uhler, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon an amended charge 1 duly filed by Textile Workers Union of America, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated June 2, 1941, against Botany Worsted Mills, herein called the respond- 1 The original charge and the amended charge were filed with the Regional Director on January 14 and April 1, 1941 , respectively. 41 N. L. R. B., No. 51. 218 (' - ' - • - - BOTANY WORSTED MILLS 219 ent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 "(1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint,- accompanied by notice of hearing, was duly served upon the respondent and the Union. The complaint alleged in substance (1) that the wool sorters or trappers, including overlookers, of the respondent at its plant at Passaic, New Jersey, constitute a unit appropriate for the purposes of collective bargaining; (2) that on December 13, 1940, the Board certified the Union as the exclusive representative of the employees of the respondent in such unit; 2 and (3) that on or about December 28, 1940, and at all times thereafter, the respondent, although duly requested, refused to bargain collectively with the Union as the ex- clusive representative of all of its employees in the appropriate unit. On June 11, 1941, the respondent filed its answer, in which it did not deny the allegations of the complaint pertaining to its business. It denied that it had committed any of the alleged unfair labor prac- tices and pleaded various special and affirmative defenses. Pursuant to notice a hearing was held in Passaic, New Jersey, on June 16, and in New York City on June 17 and 18, 1941, before Henry J. Kent, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing the respondent moved to dismiss the complaint on the ground that it is not engaged in commerce within the meaning of the Act. The Trial Examiner reserved ruling on this motion. The respondent also moved to dismiss the complaint in whole or in part on various other grounds 3 These motions were denied by the Trial Examiner. At the opening of the hearing coun, sel for the Board moved to strike the first, second, and third special defenses and, during the course of the hearing, further moved to 2Matter of Botany Worsted Mills and Textile Workers of America, 28 N. L R. B. 538 8 Separate motions to dismiss were made on the grounds that the complaint is "insuf- ficient at law" ; that it fails to state the relief sought ; that Section 9 (b) of the Act is unconsitutional ; that, in the alternative, if Section 9 (b) is constitutional, the Board abused its discretion "in making its purported determination of the allegedly appropriate collective bargaining unit" ; that the amended charge was insufficient to support the allegations in' the complaint, and that the amended charge was not verified by, a proper agent of the Union. The respondent also moved to dismiss those portions of the com- plaint which alleged a refusal to bargain on or before March 12, 1941, on the ground that the Board's order denying motions to set- aside the decision , direction of election, and election'was not-received until March 13, 1941. 220 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD strike the fourth and 'fifth special defenses from the respondent's answer.4 The motions were granted. During the course of the hear- ing the respondent renewed its application, previously made in writ- ing to the.Regional Director, for the issuance of subpoenas ad testifi- candum to 20 employees of the respondent in the bargaining unit which the Board had found appropriate on October 7, 1940.5 The Regional Director had denied this application, but without prejudice to the right of the respondent to renew its application before the Trial Examiner. The Trial Examiner again denied the application." At the close of the Board's case and at the close of the hearing, the respondent renewed its motions to dismiss the complaint in whole or in part on various grounds. The Trial Examiner denied these mo- tions. During the course of the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the hearing the respondent again moved to dismiss the complaint in whole or in part on various grounds. The Trial Examiner reserved ruling on these motions and disposed of them thereafter in his Intermediate Report as indicated below. On October 17, 1941, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties. He denied the respondent's motions upon which he had reserved ruling during the hearing and found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease` and desist from the unfair labor practices and take certain affirmative action designed to. effectuate the policies of the Act. On November 18, 1941, the re- spondent filed exceptions to the Intermediate Report. On November 21 and December 2, 1941, respectively, the respondent and the Union filed briefs. On April 30, 1942, oral argument was had before the Board in Washington, D. C. The respondent and the Union were represented by counsel and participated therein.7 The Board has considered the exceptions filed by the respondent and the briefs filed by the respondent and the Union " and, insofar as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. * The special defenses challenged the validity of the ,Board's certification of the -Union. Matter of Botany Worsted Mills and Textile , Workers Union of America, 27 N. L. R. B. 687. See Section III, below. 7 The Board , on March 22, 1942, vacated its Decision and Order which it had previously issued in this case. " The Board has also considered a brief filed by the respondent with the Trial Examiner. BOTANY WORSTED MILLS 221 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent did not deny the following allegations of the com- plaint concerning its business ,9 which we find to be- true : 9a Respondent in the course and conduct of its business as afore- said causes and has continuously caused a substantial amount of materials and, products used in the manufacture, sale, and dis- tribution oft woolen and worsted fabrics and related products to be purchased, delivered, and transported in interstate commerce from and through States of the United States other than the State of New Jersey to the Passaic plant, and causes and has continuously caused a substantial part of the products manufac- tured, sold, and distributed by it as part of its business, as afore- said, to. be supplied, delivered, and transported in interstate commerce from the said Passaic plant in the State of New Jersey. In addition, the following findings which we adopt herein, were made by the Board on October 7, 1940, in its Decision and Direction of Election in the representation proceeding : Botany Worsted Mills is a New Jersey corporation with its principal office and plant at Passaic, New Jersey, where it is engaged in the processing, manufacturing, and sale of woolen and worsted fabrics. During the first six months of 1940, the Company purchased approximately 5,000,000 pounds of raw wool and wool tops, approximately all of which were shipped to it e Prior to the hearing, a subpoena ad testificanduin and a subpoena duces tecum, respectively , were sent by registered nail to Charles F FI Johnson , president of the respondent , and to the respondent . The subpoena duces teuim called for, inter alia, the production of certain books and records relating to the respondent 's business . Counsel for the Board explained that he desired to call Johnson as a witness to elicit from him testimony concerning the respondent 's business , Neither Johnson nor the respondent appeared in response to the subpoenas The respondent denies that the subpoenas were "duly" served upon Johnson or the respondent . At the hearing, counsel for the respondent refused to admit or deny knowledge as to whether or not the subpoenas were received by Johnson or the respondent . In view of the fact that neither Johnson nor the respondent appeared in response to the subpoenas , counsel for the Board inquired of counsel for the respondent whether he would produce a witness who would give testimony concerning the respondent's business. Counsel replied : "I am not required to produce a witness " When counsel for the Board asked if lie would produce the material required by the subpoena doors tecuno, counsel for the respondent replied: "Since no subpoena has been properly and lawfully served , I am not required either to answer the question or to produce any material " Da Article II , Section 10, of the Board 's Rules and Regulations provides that "Any allegation in the complaint not specifically denied in the answer, unless the respondent shall state in the answer that the respondent is without knowledge , shall be deemed-to be admitted to be true and may be so found by the Board." 222 DECISIONS OF NATIONAL LABOR ` RELATIONS BOARD from points outside the State of New Jersey. During this same period the Company sold over 1,500,000 pounds of finished prod- ucts, approximately 95 percent of which were shipped f. o. b. Passaic, New Jersey, by the, Company to points outside the State of New Jersey. The Company employs approximately 5,000 employees." Furthermore, in* a complaint proceeding involving the respondent, the Board found on December 1, 1937, that the respondent was en- gaged in commerce within the meaning of the Act 11 This, finding was sustained by the Circuit Court of Appeals on August 3, 193912 The respondent denies that its operations affect commerce' within. the meaning. of the Act. It contends, also, that "the present pro- ceedings should be dismissed for failure on part-of Board's counsel to prove the jurisdictional allegations which were contained in the com- plaint." We think that these contentions are without merit and that the record amply supports the allegation of the complaint that the respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Textile Workers Union of America is a labor organization affiliated' with the Congress of Industrial Organizations admitting to mem- bership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background On July 6, 1937, the Board issued a complaint against the respond- ent after a charge had been filed by the Textile Workers Organizing Committee, an affiliate of the Congress of Industrial Organizations. After a hearing held in July 1937, the Board entered its Decision on December 1, 1937, finding that the respondent had interfered with, restrained, and coerced its employees in the exercise ' of the rights guaranteed in Section 7 of the Act, and further. finding that the respondent had discriminated in regard to the hire and tenure of employment of one of its employees and had thereby engaged in unfair labor practices, within the meaning of Section 8 (1) and '(3) of the Act.13 , "It should be noted that whereas the respondent was employing approximately 5,000 employees at the time of the representation proceeding , counsel for the respondent stated at the hearing in the present proceeding that the respondent was employing upwards of 6.500 employees. "Matter of Botany Worsted Mills and Textile Workers Organizing Committee, 4 N L. R B 292 12N. L R. B. v Botany Worsted Mills , 106 F. ( 2d) 263 13 Matter of Botany Worsted Mills and Textile Workers Organizing Committee, 4 N. L R B 292, enf'd as mod in N L R B . v. Botany Worsted Mills, 106 F (2d)' 263. BOTANY WORSTED MILLS 223 B. The refusal to bargain - 1. Chronology of events a. The events prior to the certification of the Union On October 7, 1940, the Board issued a Decision and Direction of Election in which it found that all wool sorters or trappers, includ- ing overlookers, at the respondent's , plant in Passaic, New Jersey, constituted a unit appropriate for the purposes of collective bargain- ing, and directed an election among the employees in the appropriate unit to determine whether or not they desired to be represented by the Union. The election was conducted on November 8, 1940. On November 12, 1940, the Regional Director issued an Election Report in which she stated that 32 employees were eligible to vote, that 32 had cast ballots, and that of these 32 employees 18 voted for, and 14 against, the Union. According to the Election Report there were no blank, void, or challenged ballots. On November 18, 1940, the respondent sent a telegram to the Board stating that it desired "reargument' of the Board's decision and direction of election" and adding that "a more ample petition will be mailed tomorrow." 14 On the following day the respondent filed a motion to set aside the decision and to consolidate the proceeding with another case then pending before the Board.15 In this motion the respondent challenged the Board's decision solely on the ground that the unit was inappropriate. On November 28, 1940, the Board received an affidavit from counsel for the Union opposing the re- spondent's motion. On November 30, 1940, the Board received a reply affidavit signed by counsel for the respondent stating that he was informed and believed "that a number of the employees who voted `yes' at the election did so because it was their idea that by voting `yes', they were voting for the Company and that by voting `no' they were voting against the Company, so that a substantial number of the voters at said election voted for the exact contrary of their desire." 16 Counsel for the respondent also stated that "I aln informed and verily believe that'if an election were held at which the voters were properly instructed of the effect of their vote, a sub- stantial majority would vote that they do not wish to be represented, 14 It should be noted that Article II, Section 9, of the Board's Rules and Regulations provides that the parties m.av file objections to an Election Report "within 5 days" after the Repolt has been issued and served upon the parties IF Matter of Arlington Mills and Federation of Woolen and Worsted Workers UTWA- AFL, et hl , 31 N L R B 21. '8 The following is the form of ballot used in the election : Do you desire to be represented for the purposes of collective bargaining by Textile Workers Union of America, affiliated with the Congress of Industrial Organizations'? YES NO 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Textile Workers Union of America." Counsel for the Union answered this affidavit by letter dated December 2, 1940. On Decem- ber 13, 1940; the Board issued a Supplemental Decision and Certi- fication of Representatives in which it denied the respondent's motion and certified the Union as the exclusive representative of the em- ployees in the unit which it had previously found to be appropriate for the purposes of collective bargaining. b. The events following certification of the Union' On December 27, 1940, Joseph Sprechman, organizational director in charge of the Union's activities in the wool industry for the Passaic Valley, in a letter to the respondent, requested-a bargaining confer- ence on behalf of its employees in the certified appropriate unit. He requested a reply by return mail. No reply was ever given., A few days later, Sprechman telephoned C. P. Johnson, the respondent's president, but Johnson's secretary informed Sprechman that Johnson was not there. Sprechman thereupon asked to speak to some other official of the respondent, and the secretary connected him with one Remig; Remig told Sprechman that he could do nothing in reference to the proposed negotiations and said that he would request Johnson to call Sprechman. , The following clay Sprechman undertook. to telephone Johnson again. Sprechman was informed that Johnson was not present and he again spoke to Remig, stating that he had expected a call from Johnson, but had not heard from him. Sprech- man then asked Remig to try to arrange an appointment for him with some official in authority to discuss bargaining negotiations. Remig again stated that he was without authority, but that he expected Johnson in during the afternoon or following morning and would request Johnson to call Sprechman. Johnson never called Sprech- man. On January 8, 1941, Sprechman sent the following letter to John- son, by registered mail. On December 27th, 1940 we sent you a communication request- ing an appointment to bargain collectively for the unit in which the National Labor Relations Board has certified us as collective bargaining agent. Since that date we have attempted on various occasions to contact you by telephone. We realize that your business takes a great deal of your time. However, we feel that an organization 17 The findings set forth below concerning the Union 's attempts to bargain with the respondent are based either on uncontroverted documentary evidence or undemed testimony. BOTANY WORSTED MILLS 225 such as yours must certainly have other officers who can take up these problems in the meantime. We hope that this question will not be delayed any, longer. May we hear from you as to the time, date and place for such a conference? On January 14, 1941, Johnson replied to Sprechman's letter of January 8 as follows : I regret the delay that there has been in response to your communications, due very largely to the fact that I have had to be constantly away in connection with matters of national defense at Washington. You are quite right that there are other officers who eventually can take over whatever duties there may be in connection with the matter at hand, but until a definite policy is laid down by the directors of this company and its Counsel it will be impossible to give you any definite reply. It has been my hope that all this would be possible long ago, but, unfortunately, our counsel is ill and as he had handled this entire matter we are constrained to wait until his illness is over. Following the receipt of your letter of the 8th I phoned his office and was advised that he was very ill and that the doctor 'refused to permit anybody to talk with him and it probably would be some days before we could discuss this situation with him. I am sure you will under- stand that until we as officers are advised what the policy of counsel is to be, irrespective of what our recommendations may be, we will have to await such knowledge. I am sorry that conditions are as they are and I am sure that our counsel would be delighted if he were well enough to sit in because this is one of those matters that the sooner we can get it behind us and settled as to what our mutual relationships are the more quickly we can all arrive at understandness of the entire picture. On January 17, 1941, Sprechman wrote Johnson another letter and requested Johnson to meet with him "at least for an informal discussion on this question." Johnson's secretary wrote Sprechman on January 21, 1941, and stated that she would call Johnson's atten- tion to Sprechman's letter of January 17, but no further acknowledge- ment was ever received. On February 6, 1941, Sprechman again wrote Johnson a letter, complaining because of the failure of the respondent to arrange for a meeting and "requesting that a date be set in order to discuss these problems." No reply to this letter was ever made by the respondent. - 463892-42-vol. 41-15 226- DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 7, 1941, the respondent filed with the Board a motion seeking to vacate the decision, election, and certification in the repre- sentation proceeding. To an affidavit accompanying this motion the respondent attached photostatic copies of two petitions, each dated November 15, 1940, and signed by X10 employees (20 in all). Both petitions are worded the same; they are addressed to Charles F. N. Johnson, president of the respondent, and assert that: A goodly percentage of we wool sorters and trappers do not think being members of the C. I. O. will benefit us or our fellow workers and therefore do not wish to join that organization. If possible, we would like to confer with you upon this subject, which is of the utmost importance to us. In a brief which accompanied this motion , counsel for the re- spondent , referred to these petitions as "newly discovered evidence." The brief also stated that the petitions "were sent to the president of Botany Worsted Mills in late November." On March 12, 1941, the Board denied the respondent's motion to vacate the decision, election , and certification . On March 17, 1941, Sprechman again wrote to the respondent requesting it to bargain with the Union. This letter reads as follows : We have been notified by the National Labor Relations Board that your petition to re-open the case of the wool sorters and trappers has been denied. Accordingly, the Textile Workers Union of America, as the certified collective bargaining agent for the wool sorting department again requests a meeting with your representatives to confer on working conditions pertaining to this department. We ask that this conference take place no later than one week from the date of this letter.' To date, your representatives by one means or another have de- layed this conference,- all of the time professing a desire to abide by the National Labor Relations Act. We trust that no further delay will prevent this profession from resolving itself into action such as the meeting we now request. We shall appreciate the courtesy of an immediate reply. The respondent, by Frederick R. Sanborn , its attorney and counsel of record in the hearing, replied on March 21, 1941, as follows : On behalf of Botany Worsted Mills, we acknowledge your letter of March 17, 1941. We resent the suggestion that any conferences with you have been delayed, as that is, not the fact. As we see the situation and as we interpret the National Labor Relations Act, the decision. and certification of the National Labor Relations Board in this case was thoroughly wrong, for a variety of reasons , constitutional, legal and factual, which need not be BOTANY WORSTED MILLS 227 set-forth in this letter. Certainly it was our client's right, as well as our duty, to bring both the Board's errors and the new evidence to its attention. To do so did not constitute "delay." .Moreover, a majority of the employees, in the alleged unit which the Board asserted to be appropriate, have stated in writ- ing that they no longer wish to be represented by you. Certainly - the employees have-the absolute right to change their choice of representatives at any time, and that choice, when made, must be respected by you as well as by our client. We do not see how under the law you' can continue to act as agent for any group once you have ceased to represent a majority in that group. Neither do we see how we could advise our client that any agreement entered into through you 'as agent would be legally and validly binding when our client has been heretofore put on notice by its employees that you cannot speak for a majority of them, even in the alleged unit asserted to be appropriate by the order of the National Labor Relations Board. To take any other legal position than this would be' to disregard both the letter and the.spirit of the,National Labor' Relations Act. We have no desire to delay in this matter. If upon reflection you feel that, although you now 'represent only a minority, you are still legally entitled to act as if you represented-a majority, we shall be glad to submit promptly the question to the determi- nation of the courts. We are aware of the rule that normally our client-cannot appeal to the courts from the certification of the Board. We think, however, that it would be easy, and quick to do so by stipulation, and upon an agreed state of facts. We shall be glad to enter into such a stipulation with your counsel and to go forward quickly in the matter. In order to facilitate that result, we are sending a copy of this letter to your attorney, Mr. Udoff, and to the National Labor Relations Board for the Second Region. Upon very short notice we shall be glad to meet Mr. Udoff in order to agree upon the stipulation. Please instruct him to get in touch with us at once and to ar- range for a conference. • On the basis of charges filed by the Union, the Board subsequently issued its complaint on June 2, 1941, alleging that the respondent had refused to bargain collectively with the Union. 2. Conclusions a. The appropriate unit As noted above. the Board previously found, and the complaint herein alleges, that all wool sorters or trappers, including over- 228 DECISIONS, OF NATIONAL LABOR -RELATIONS BOARD lookers, in the respondent's Passaic, New Jersey, plant, constitute a unit appropriate for the purposes of collective bargaining. The re- spondent had denied this allegation of the complaint in its answer. In its previous Decision the Board, in finding that all wool sorters or trappers, including overlookers, constituted an appropriate unit, said: The record indicates that the sorters or trappers work in a department separated from the other departments of the plant and are engaged in the preparation of wool for subsequent operations by other employees of the Company. They hate been organized by the Union. Wherever possible, it is obviously de- sirable that, in a determination of the appropriate unit, we render collective bargaining of the Company's employees an immediate possibility. 'There is no evidence that the majority of the other employees of the Company belong to any union whatsoever ; nor has any other labor organization petitioned the Board for certification as representative of the Company's employees on a plant-wide basis. Consequently, even if, under other circum- stances, the wool sorters or trappers would not constitute the most effective bargaining unit, nevertheless, in the existing cir- cumstances, unless they are recognized as a separate unit, there will be no collective bargaining agent whatsoever for these workers. At the present time, and in view of the existing state of labor organization among the employees of the Company, in order to insure to the sorters or trappers the full benefit of their right to self-organization and collective bargaining and otherwise to effectuate the policies of the Act, we find that the wool sorters or trappers of the Company, including the overlookers, constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. We have reviewed our decision of the appropriate unit in the light of the contentions advanced by the respondent and the evidence in the representation proceeding and in the case now before us, and we see no reason to alter our previous determination. We find, accordingly, that all wool sorters or trappers, including overlookers, at the re-' spondent's Passaic, New Jersey, plant constitute and at all times material herein constituted a unit appropriate for the purposes of collective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. ,BOTANY WORSTED MILLS 229 C. The Union's majority; the refusal to bargain It is clear that the respondent has refused to bargain with the Union. Sprechman's first letter to the respondent, dated December 17, 1940, shortly after the Board had issued its certification, went unanswered. Nor was Sprechman able, when he subsequently tele- phoned the respondent, to speak to C. P. Johnson, the respondent's president, or to arrange a conference through any other official. Al- though Sprechman was told that Johnson would be asked to call him, he never received any telephone call,from Johnson. When Sprech- man, again wrote to the respondent on January 8, 1941, Johnson replied on January 14, 1941, that he was unable to proceed with bargaining negotiations until he had been advised by counsel for the respondent, who was then ill, "what the policy of counsel is to be." In answer to this letter, Sprechman suggested, on January 17, 1941, that Johnson meet with him "at least for an informal discussion." While Johnson's secretary acknowledged receipt of this letter, and said, that she would call it to Johnson's attention, Sprechman re- ceived no further communication from the respondent. Again on February 6, 1941, Sprechman wrote to Johnson and again his letter was not answered. Over a month later, on March 7, 1941,, the re- spondent filed its motions to set aside the decision, election, and certification. Shortly after these motions were denied on March 13, 1941, Sprechman again wrote to the respondent and requested a bar- gaining conference. To this letter the respondent replied, by its attorney on March 21, 1941, alleging that the Board's decision and certification were erroneous, questioning the Union's authority to -act as representative for employees of the respondent, and offering to submit "the question to the determination of the Courts." The respondent does not deny that it has refused to bargain with the Union but contends that it was "justified both in the fact and in the law in refusing to bargain" with the Union, and that "it was the legal duty of respondent to refuse to bargain collectively" with the Union on and after November 15, 1940. In support of this con- tention, the respondent has alleged in its answer "that on or about the 15th day of November 1940, a majority of [the] 32 employees [in the 'unit found to be appropriate by the Board] to wit, 20 thereof, notified respondent in writing that they no longer desired to be rep- resented for collective bargaining purposes" by the Union, and that "said notification at all times thereafter has remained and now is in full force and effect." On motion of counsel for the Board, the Trial Examiner struck this allegation of the respondent's answer and refused to entertain evidence in its support. - At the hearing, the respondent offered to prove that 20 of the 32 employees in the 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit found appropriate would'have testified "that on or about the 15th day of November 1940,.they ceased to wish to be represented" by the Union, and that "that wish has continued at all tinges to the present time, and is their wish today." For the- purposes of our Decision, we shall treat the testimony offered by the respondent as received and we shall assume that the 20, employees were permitted to testify and did testify that "on or about' the 15th of November 1940 they ceased to wish to be repre- sented" by the Union and that "that wish has continued at all times to the present." Such testimony, adduced at the very hearing in which the respondent was charged with unfair labor practices and received months after a secret election in which a majority of the employees cast their ballots for the Union, cannot be relied upon as sufficient or adequate to establish that the employees had changed their minds, one week after freely recording their choice in a secret election. Nor do we believe that the testimony of the employees is sufficient to rebut the presumption of the Union's continuing status on Novem- ber i15, 1940, as majority representative's established in a secret Board election on November 8, 1940. To hold otherwise would be to render the orderly procedure and administrative machinery created by the Act for, the ascertainment of employee bargaining representatives inefficacious and inconclusive to a degree sufficient to defeat the stat- utory purpose.' This is particularly true under the circumstances "Bethlehem Steel Co v National Labor Relations Board , 120 F (2d) 641 (App. D. C ), enf 'g Matter of Bethlehem Steel Corporation„ et al and Steel Workers Organizing Committee, 14 N L R. B, 539 , National Labor Relations Board v. Whittier Mills Co, 111 F. ( 2d) 474 (C C A. 5), enf'g Matter of Whittier Mills Company et al. and Textile Workers Organizing Committee , 15 N L R B 457 ;, National Labor Relations Board v National Motor Beartnp Co., 105 F. (2d) 652 (C C A. 9), enf'g as mod Matter of National Motor Bearing Company and International Union, United Automobile Workers of America, 5 N. L R B 409 - 1° In Valley Mould and Iron Corporation v National Labor Relations Board, 116 F. (2d) 760 , 764-765, (C C. A. 7), enf'g Matter of Valley Mould and Lion Corporation and Steel Workers organizing Committee . 20 N L R B . 211, the court said : "In pursuance of an election , the Board had certified Amalgamated as the duly designated exclusive bargaining agent for the employees . This certification iemained in full force and effect and petitioner , by its\own statement , at that time refused to bargain with Amalgamated in the manner and in the relation required by the certifi- cation and the act As we lead the statute, in the Board is lodged jurisdiction to determine in a piopei manner the unit, apps opriate for the purpose of collective bar- gaining. Congress conferred exclusive jurisdiction upon the Board to determine the appropriate and selective bargaining unit for employees and gave to it alone proper machinery by way of election for making such determination Employees have the i iglit to designate their bargaining agent. The Board alone may certify the selection and we take it that so long as that certification remains in full force and effect, the organization designated must be recognized The employer must accord to a certified agent recognition as the proper bargaining agent until the certification is rescinded or succeeded by another Any other holding would upset orderly procedure and destroy the efficiency of deteimination by the body authorized to net and maintain the proceed- ings in a state of suspension and indecision " Citing International Association of Machinists v National Labor Relations Board, 110 F (2d) 29 (App D C ) and National Labor Relations Board v Remington-Rand Inc., 94 F. (2d) 862, 870 (C. C. A. 2), cert denied 304 U S. 576 BOTANY WORSTED MILLS 231 of this case. Here, during the several months which followed after we had issued our certification, the Union repeatedly attempted, with- out avail, to arrange a conference with the respondent. Then, on March 7, 1941, the respondent filed its motion to vacate the decision, election, and certification on the basis of the two petitions addressed to Johnson and alleging that "a goodly percentage of we wool sorters and trappers . . . do not wish to join" the Union. In a brief which accompanied the motion, the respondent referred to these petitions as "newly discovered evidence," although elsewhere in the brief, it alleged that it had received the petitions "late. in November" 1940. In other words, the respondent sought to challenge our certification, months after it was issued, on the, basis of "newly discovered evi- dence" which was in its possession before the certification was issued. Furthermore, this evidence merely tends to establish the absence of a desire on the part of some of the employees in the appropriate unit "to join" the Union, a fact which is'inlnmaterial to the question of whether or not these employees desired representation by the Union. We are of the opinion that the respondent's challenge of our certifi- cation in this proceeding is neither timely nor meritorious. We find that on December 13, 1940, and at all times thereafter the,Union was, and that it now is, the duly designated representa- tive of a majority of the employees in the appropriate unit. Pur- suant to Section 9 (a) of the Act, the Union was, and now is, the exclusive representative of the employees in said unit for the pur- poses of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. We further find that on December 28, 1940, and at all times there- after the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the'rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, above, occurring in connection with the operations of the re- spondent 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, we shall order that it cease and desist therefrom 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent refused to bargain collectively with the Union as the exclusive representative of its employees- in the appropriate unit. In order to effectuate the policies of the Act we shall order that the respondent , upon request, bargain collectively with the Union as the exclusive representative of its employees within the unit herein found to be appropriate. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, affiliated with the Congress of Industrial Organizations , is a labor organization , within the mean- ing of Section 2 (5) of the Act. 2. All wool sorters or trappers , including overlookers , of the re- spondent at its Passaic, New Jersey, plant constitute and at all times material herein constituted a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act.' 3. Textile Workers Union of America, affiliated with the Congress of Industrial Organizations , was on December 13, 1940, and at, all times thereafter has been, the exclusive representative of all employees in, said unit for the purposes of collective bargaining , within the meaning-of Section 9 (a) of the Act. 4. By refusing on December 28, 1940, and at all times thereafter, to bargain collectively with Textile Workers Union of America, affili- ated with the Congress of Industrial Organizations , as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 ( 1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of. the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- BOTANY WORSTED MILLS 233 spondent, Botany Worsted Mills, Passaic, New Jersey, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all wool sorters or trappers, includ- ing overlookers, at its Passaic, New Jersey, plant; ' (b) In any manner interfering with the efforts of Textile Workers Union of America, affiliated with the Congress of Industrial Organi- zations, to bargain collectively with the respondent. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all wool sorters or trappers, includ- ing overlookers, at its Passaic, New Jersey, plant, in respect to rates of pay, wages, hours of employment, and other conditions of employ- ment; (b) Post immediately and keep posted for a period of at least sixty (60) consecutive days from the date of posting in conspicuous places throughout its Passaic, New Jersey, plant notices stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order, and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order.