Derenson's

DERENSON'S 273 Bureau, Inc., employed as foreman, dough mixers, oven men, moulder men, machine men, benchhands, control room men, jobbers, bakers, helpers, excluding guards, professional em- ployees, and supervisors as defined in the Act, machinists, engineers , clericals, office employees, driver salesmen, special delivery drivers, over-the-road transport drivers, delivery men, semitruck and trailer drivers, loaders, checkers, wrappers, delivery men for retail bakeries, stockmen and flour blenders, assistant stockmen and flour blenders, men in charge of miscellaneous help, miscellaneous help, floorladies, assist- ant floorladies, machine operators, experienced girls, be- ginners, and all other employees, as their representative for purposes of collective bargaining , and that pursuant to Section 9 (a) of the Act, the aforesaid organization is the exclusive representative of all the employees included in the foregoing unit, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. DERENSON' S and LOCAL 576, FURNITURE WORKERS, UP- HOLSTERERS AND WOOD WORKERS UNION, INDEPEND- ENT. Cases Nos. 21 -CA-1353 and 21-CA-1408. April 22, 1953. DECISION AND ORDER On December 30, 1952, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceed- ings, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. There- after, the Respondent filed exceptions to the Intermediate Re- port and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [ Mem- bers Houston, Murdock, and Styles]. 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 Intermediate Report, the exceptions and brief, and the entire record in the cases, and hereby adopts the i The Respondent filed a motion with the Board alleging that the Union is not in compliance with Section 9 (h) of the Act by virtue of the fact that Gus Brown has not filed an affidavit as an officer of the labor organization and requesting an investigation of Brown's status as business representative . An administrative investigation of this matter , however, has not disclosed information showing that Brown is an officer of the Union, and we are adminis- tratively satisfied that the Union is, and has been, in compliance at all times material. In its brief the Respondent renewed several motions for dismissal made at the hearing which were denied by the Trial Examiner . TheTrial Examiner 's rulings are affirmed, and the motions are hereby denied. 104 NLRB No. 38. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. On June 25, 1951, following an election conducted on May L5, 1951, pursuant to a stipulation for certification upon consent election, the Union was certified as the bargaining representa- tive for an appropriate unit of the Respondent's employees. On June 5, 1951, the Union had made its first request to bargain on the Respondent. Following many months of attempting to engage the Respondent in bargaining (as detailed by the Trial Examiner in his Intermediate Report) the Union, on February 27, 1952, filed a _charge alleging that the Respondent had since June 25, 1951, and at all times thereafter, refused to bargain in good faith with the Union. On or about March 28, 1952, the Respondent's official met with a Board agent, agreed to bargain with the Union, and by letter notified the Union. The Board agent, on March 31, 1952, wrote the Union, as set forth in the Intermediate Report, that, as the Respondent had indicated that it was willing to bargain in good faith, it would be advisable for the Union to withdraw its charge. On April 1, 1952, the Union executed the withdrawal request, which was approved by the Board's Regional Director the following day. The Union on March 31, 1952, resumed its efforts to engage the Respondent in collective bargadning: Again the Respondent indulged in tactics described 1y the Trial Examiner as "delay and sham bargaining" acid finally, after a meeting on April 14, 1952, refused to meet with the union representative or to supply him with the wage data requested by the Union and promised by the Respondent: Oil May 6, 1952, the Unioh filed another charge, in Case No. 21=CA 1408, alleging that the n.espondenthad refusedtobargain and to supply the Union with the requested wage data. On June 12, 1952, the Regional Director notified the Respondent that the charge in Case No. 21-CA=1353, whichhadbeen withdrawn, had been reinstated. The Respondent contends that the 6-month period of limita- tion provided for in Section 10 (b) of the Act should be com- puted from May 6; 1952, the date the charge in Case No. 21-CA- 1408 was filed, and not, as apparently computed by the Trial Examiner,, from February 27, 1952, the date of the filing of the charge in Case No. 21-CA=1353. We agree with this con- tention of the Respondent. When the charge was withdrawn, under the circumstances detailed herein and in the Inter- mediate Report, the charge ceased to establish a cutoff date and the Respondent, until the filing of another charge, had the right under Section 10 (b) to be assured that it would not be held liable for activities engaged in more than 6 months be- fofe the latter charge.2 The record, however, is clear that the Respondent refused to bargain in good faith with the Union during the 6-month period preceding May 6, 1952, the date on which the charge in Case No. 21-CA-1408 was filed. We fix 2See Olin Industries, Inc., 97 NLRB 130. Compare Courier Post Publishing Company, 102 NLRB 26, where the Board came to a different conclusion in a case involving a charge with- drawn in connection with a formal settlement agreement. DERENSON'S 275 the date of the commencement of the violation on November 14, 1951, when Brown called Mitzenmacher regarding a ne- gotiating meeting and asked why he had not heard from him. ORDER Upon the entire record in the cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent, Derenson's, Los Angeles, California, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 576, Furniture Workers, Upholsterers and Wood Workers Union, Independent, as the exclusive representative of all the employees in the appropriate unit described in the Intermediate Report. (b) In any manner interfering with the efforts of Local 576, Furniture Workers, Upholsterers and Wood Workers Union, Independent, to bargain collectively with it on behalf of the employees in the aforesaid appropriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 576, Furniture Workers, Upholsterers and Wood Workers Union, Independent, as the exclusive bargaining representative of all the employees in the aforesaid appropriate unit with respect to wages, rates of pay, hours of employment, or other condi- tions of employment, and if an agreement is reached, embody such understanding in a signed contract. (b) Post at its plant at Los Angeles, California, copies of the notice attached to the Intermediate Report marked "Ap- pendix." 9 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by:,the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. 3 This notice, however, shall be, and it hereby is , amended by striking therefrom the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof 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." 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding , brought under Section 10 (b) of the National Labor Relations Act, as amended , herein called the Act, was heard at Los Angeles , California , on October 20-22, 1952, pursuant to due notice to all parties . At the hearing all parties were represented, were afforded full opportunity to be heard , to examine and cross -examine witnesses , to introduce evidence bearing on the issues, to argue the issues orally upon the record , and to file briefs and proposed findings . The Respondent filed a brief which has been considered. The consolidated complaint issued by the General Counsel of the National Labor Relations Board i on August 1, 1952 , and duly served on the Respondent alleged in substance that the Respondent on or about June 28 , 1951 , and at all times thereafter , had refused and failed to bargain collectively in good faith with the Union , which was the certified representative of its employees in an appropriate unit, thereby violating Section 8 (a) (1) and (5) of the Act. The Respondent filed an answer to the consolidated complaint on August 12, 1952, and an amended answer on October 20, 1952 , which denied the commission of any unfiar labor prac- tices and set forth certain affirmative defenses to the complaint The General Counsel moved to strike some of the affirmative defenses on various grounds . These motions came on regularly for argument at the hearing and were decided by the Trial Examiner, as will be set forth in detail hereafter. Upon the entire record in the case and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT David Erenberg , an individual, does business under the duly registered fictitious name "Derenson's" at Los Angeles, California . Derenson' s engages in the manufacture , sale, ani distribution of component metal parts for furniture . Products of Derenson's Los Angeles, California , plants, valued at approximately $ 150,000 annually , are sold and delivered to the State Manufacturing Company, which uses Derenson ' s products in the manufacture of outdoor furniture State Manufacturing Company annually sells and ships to customers located outside the State of California , merchandise valued in excess of $ 50,000. 2 Upon the pleadings and the record , I find that at all times material herein, Derenson's was engaged in commerce within the meaning of the Act 9 IL THE ORGANIZATION INVOLVED Upon the entire record I find that the Union is a labor organization within the meaning of Section 2 (5) of the Act III. THE UNFAIR LABOR PRACTICES A. Background ; the representation case, appropriate unit, union majority , Board certification On April 20 , 1951, the Union filed a petition for certification of representatives with the Regional Office for a unit of Derenson' s employees . This petition instituted Case No 21-RC- 1941 before the Board On May 3, 1951 , the Union filed a second petition of similar nature for a slightly larger unit of Respondent' s employees in Case No 21-RC-1938. On May 16, 1951, the Respondent and the Union executed an agreement for stipulation for certification upon consent election, which was approved by the Regional Director on the same day Pursuant to this agreement , an election was conducted by the Board on May 25, 1951 , with the result that i The General Counsel of the Board and his representative at the hearing are referred to herein as the General Counsel, Derenson's as the Respondent, and the above-named charging Union as the Union , or as Local 576. 2Respondent's amended answer admitted these facts which were set forth in the consoli- dated complaint. See also testimony of Harry Mitzenmacher , reviewed herein, as to the re- lationship of the operation of Derenson 's and State Manufacturing Company. S Hollow Tree Lumber Company, 91 NLRB 635. DERENSON'S 277 Teamsters' Local No. 196,4 which had intervened in the proceeding, received 3 votes and the Union 17 votes . On May 31, 1951 , the Teamsters , by letter to the Regional Director , objected to the election upon the ground that ...Gus Brown, who is presently designated as business agent for Local No. 576, is in truth an officer of Local No 576 He has been designated as a business agent for the sole purpose of avoiding the requirements of Section 9 (h) of the Act Since Gus Brown is in truth an officer of the Union , his failure to file the affidavit under Section 9 (h) bars the Union from the use of the services of the Board. On June 6, 1951, the Regional Director issued his report on objections , recommending that the objections be overruled on the ground that " contrary to the contention of Local 196, Gus Brown has filed an affidavit under Section 9 (h) Said affidavit is on file with the Com- pliance Branch of the National Labor Relations Board in Washington, D.C." Thereafter on June 25 , 1951 , the Board issued its Decision and Certification of Representa- tives which reads in part as follows: Thereafter, on June 1 , 1951, Teamsters Local Union No. 196 filed objections to the election. The Regional Director investigated the issues raised by the objections, and on June 6, 1951 ; issued and served upon the parties his report on objections , in which he recommended to the Board that the objections be overruled . No exceptions were filed to the Regional Director' s report within the time provided therefor . We therefore adopt the recommendations of the Regional Director and find that the objections raise no sub- stantial and material issues as to the election . The objections are hereby overruled The Board also found that the following employees of Derenson' s constituted a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (h) of the Act: All production and maintenance employees , truckdrivers , warehousemen , and helpers in the plant located at 1522 North Indiana Street. Los Angeles 31, California , excluding office and clerical employees , watchmen , guards, salesmen, professional employees, and supervisors as defined in Section 2 (11) of the Act The Board thereupon certified the Union as the bargaining representative of the employees in the above-described unit. Upon the entire record I find that the unit of Respondent ' s employees described above is appropriate for the purposes of collective bargaining, that the Union on May 25, 1951, repre- sented a majority of the employees in the aforesaid appropriate unit, and that on and after June 25, 1951 , the Union was the certified bargaining representative of said employees. B. The motions to strike certain defenses set forth in Respondent' s answer After the election referred to above, the Union initiated bargaining with the Respondent Because of its dissatisfaction with Respondent ' s good faith in these negotiations , it ultimately filed charges with the Board, upon which the instant complaint is based In its answer in this proceeding , the Respondent pleaded several affirmative defenses against which the General Counsel made a motion to strike The most important of these affirmative defenses is alleged in the answer as follows: That Gus Brown, who is presently designated as Business Agent for Local #576, is in truth and fact an officer of Local # 576. Gus Brown has been designated as Business Agent for the sole purpose of avoiding the requirements of Section 9 (h) of the Labor Management Relations Act. The officers of Local #576 are "fronting" for Gus Brown for the sole purpose of avoiding the requirements of Section 9 (h) of the Act. The failure of Gus Brown to file the affidavit required by Section 9 (h) of the Act bars the Union from utilizing the processes of the Board and bars the Board from issuing a complaint against Respondent upon a charge of unfair labor practices filed by a noncomplying union. A second affirmative defense realleged the above , and added a statement that there was no duty upon Respondent to bargain collectively with a union which had not complied with the provisions of Section 9 (h) of the Act. A third affirmative defense alleged that Local 576 had not complied with the provisions of Section 9 (h) of the Act, and that the Board was without jurisdiction to issue a complaint against Respondent upon a charge of unfair labor practice a This labor organization is hereafter referred to as the Teamsters. Z83Z30 0 - 54 - 19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed by the noncomplying union, and that there was no duty upon Respondent to bargain collectively with Local 576 as that Union had not complied with the provisions of the Act The General Counsel moved to strike the above defenses on the ground that the Board had administratively determined, prior to the issuance of the instant complaint, that the Union had complied with Section 9 (f), (g), and (h) of the Act , and that the allegations did not state a valid defense in this proceeding. It will be noted that the paragraph of the answer quoted above raises the question of com- pliance only on the ground that Gus Brown , who had not filed an affidavit , was required to file one under the Act. In his argument the General Counsel stated that if it was the contention of the Respondent that the proper officers of the Union had not filed affidavits , the proper remedy for the Respondent under the circumstances was to request the Board for an administrative determination of compliance status , the procedure followed in United Electrical , Radio and Machine Workers of America, 96 NLRB 1029 He also pointed out that the identical objection to the Board' s determination that the Union was in compliance was entered in the representa- tion proceeding by the Teamsters , and that the Regional Director had found , and the Board confirmed the finding , that Gus Brown , the officer in question , had filed an affidavit pursuant to Section 9 (h) of the Act The Respondent then argued that the affidavit of Gus Brown filed with the Board pursuant to Section 9 (h) of the Act was perjurious , and constituted a fraud upon the Board , and that the Board' s determination that the Union was in compliance was vitiated by the fraud . The Re- spondent contended that it had the right to prove this fraud upon the Board in this proceeding. The General Counsel denied that the truth or falsity of Brown's affidavit was a litigable issue in this proceeding, and stated that the Respondent ' s complaint that Brown' s affidavit was perjurious should be properly directed to the Department of Justice which has charge of the prosecution of individuals who file false affidavits with the Board pursuant to Section 9 (h). In support of his position the General Counsel cited Sunbeam Corporation and United Electrical, Radio and Machine Workers of America, 93 NLRB 1205. In that case, a similar situation , the Board wrote as follows: Respondent does not deny that it refused to bargain with the Union. Despite the filing of non-Communist affidavits by the Union's officers as required by Section 9 (h) of the Act, Respondent nevertheless contends that the Union is a completely dominated instru- ment of the Communist Party This alleged fact . Respondent argues, relieved it of any duty to bargain. Respondent's interpretation of the Act runs counter to the plain intent of Congress When the amendments to the National Labor Relations Act were being considered, Con- gress showed abundant concern for the problem of communism in labor organizations. It chose to meet this problem , not by writing qualifications into the substantive or defim- tional portions of the Act , but by enacting the procedural requirements of Section 9 (h). The question whether some persons filing the non-Communist affidavits required by that section have committed perjury was clearly intended by Congress to be the concern of the Department of Justice . Were the Board to take upon itself the task of deciding the truth or falsity of non-Communist affidavits , it would be departing from the legislative plan. The Board has consistently adhered to the above policy. 6 The Respondent argued that as stated by the United States Supreme Court in N.L.R.B. v. Highland Park Manufacturing Company, 341 U. S. 322, 95 L. ed. 969 (1950), the purpose of the non-Communist affidavit provision in Section 9 (h) of the Taft-Hartley Act is to "wholly eradicate and bar from leadership in the American Labor Movement, at each and every level, adherence to the Communist party and believers in the constitutional overthrow of our Government." Counsel for the Respondent acknowledged in his argument that the Board 6A case concerning the same parties as United Electrical, Radio and Machine Workers of America, supra 6See Dalton Telephone Company, 82 NLRB 1001, enforced 187 F. 2d 811 (C. A. 5, March 2, 1951) (motion of respondent to remand for findings regarding compliance matters, denied); Red Rock Company, 82 NLRB 521, enforced as modified 187 F. 2d 76 (C. A. 5, February 15, 1951); Vulcan Forging Company, 85 NLRB 621, reversed on other grounds 188 F. 2d 927 (C. A. 6, March 23, 1951); Ann Arbor Press, 85 NLRB 28, enforced as modified 188 F. 2d 917 (C. A. 6, March 25, 1951); Greensboro Coca Cola Bottling Company, 82 NLRB 67, en- forced 180 F. 2d 840 (C. A. 4); cf. N.L.R.B. v. Highland Park Manufacturing Company, 341 U. S. 322. See also Stationers Corporation, 96 NLRB 196; Louisville- Container Corporation, 99 NLRB 81; and Alpert and Alpert, 92 NLRB 806. DERENSON'S 279 has consistently held that a Union ' s compliance with Section 9 (f), (g), and (h) is a matter for the Board' s determination , and that such a matter is not a litigable issue , but the counsel for the Respondent argued that the question as to the validity of the Board 's position has not yet been finally determined by the courts. He argued that the Supreme Court in Highland Park Manufacturing Company, supra , had held that questions of law material to a determination by the Board that a union has complied with the affidavit requirements of Section 9, are subject to judicial review at the instance of an employer in an unfair labor practice proceeding. He argued that the courts have left undetermined until now the question of whether a finding of act by the Board that a union has or has not complied with the requirements of Section 9 (h) is subject to judicial review in a similar proceeding . He pointed out that in N.L.R.B. v. Red Rock Co., 187 F . 2d 96, cert. denied 341 U. S. 950 , the court, in enforcing the Board' s order, held that the employer had failed to make any effort to prove affirmatively that there was no valid compliance by the union with the Act , and that the court was careful to point out ,ihat if, on a petition for enforcement ,' it was made to appear to the court by positive proof that the Board had taken jurisdiction of a charge made by a noncomplying union, and had ordered an employer to bargain with it, the court would not enforce such an order. Counsel for the Respondent argued that by its holding that compliance is not a litigable issue, and that no evidence thereon can be introduced in an unfair labor proceeding, the Board denied to a respondent his right of judicial review as to this determination of the Board, which so vitally affected the rights and duties of the Respondent He further argued that he sought to prove that the Union , by Gus Brown, had perpetrated a fraud upon the Board in its determination of the compliance status of the Union, and that the Respondent was entitled to prove this fraud in this proceeding, which could not be brought except for the prior determina- tion of the Board, that the Union had in fact complied with the Act. He insisted that the Respondent had the right to protect himself in this proceeding, which is civil in nature, against the fraudulent conduct of the Union . He rejected the Board' s interpre- tation of the legislative scheme, which would afford the Respondent a remedy only through the remote and independent agency of the justice Department via a criminal prosecution, in which the perjurious nature of the affidavit would have to be established to the satisfaction of a jury beyond a reasonable doubt . He argued that the Respondent had the right to prove the fraud in this civil proceeding, and that the Department of justice had its right to conduct a criminal prosecution on the same facts , if it so desired . He denied that the legislative scheme envisaged that the Department of justice would be the sole agency of the Government responsible for determining the truth or falsity of the affidavits required by the section. He contended that Congress took cognizance of the basic fact that boards which exercise judicial functions, like courts, of their very nature , have a duty to themselves , to the Government , and to the public to proceed with care and deliberation to be reasonably sure that their decisions and mandates do not become instruments of illegality , because of frauds that may be perpetrated upon them. He denied that the Board as a quasi -judicial body had the right to accept affidavits filed with it, without regard to their truth or falsity , and on the basis of such affidavits administratively determine that a union was in compliance with the Act , and that such a union could institute a proceeding before the Board against a respondent, and in the ensuing proceeding , deny to the Respondent an opportunity to prove that the affidavits which were a condition precedent to the proceeding , were false. The Trial Examiner stated that he felt constrained by the weight of authority contained in the decisions of the Board and the courts to strike the Respondent ' s first and third affirmative defenses , and a portion of the second. However , he stated that he would permit the Respondent to make an offer of proof of the matter , which it intended to introduce under the defenses, in order that the legal question involved might be presented to the Board and the courts with clarity.7 Thereafter the Respondent offered to prove that at the time Gus O . Brown, officer of the Union, made his affidavit pursuant to Section 9 (h) of the Act , that Brown was a member of the executive committee of the Civil Rights Congress , which could be proven to be a well- known Communist organization; that Brown was also a sponsor of the American Youth for Democracy , a successor group to the Young Communist League, and that many of Brown's cosponsors of the aforesaid League were then on trial at Los Angeles charged with teaching the overthrow of the United States Government ; that the Union was expelled from the C.I.O. as being a Communist -dominated Union, that Brown was arrested as a Communist who had failed to register as such pursuant to an ordinance of the city of Los Angeles , which required 7 The transcript of testimony contains several minor errors in reporting the arguments of counsel and the remarks of the TrialExaminer on this point, e.g. line 22 page 11, "defensive" should read "offensive"; line 17 page 23, "irregularity" should read "regularity"; line 23 page 28, "reserve" should read "preserve." Since the errors are obvious in their context, no formal order of correction will be entered except on motion of counsel. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such registration, and was discharged when the Appellate Division of the Superior Court of California ruled that the registration ordinance was unconstitutional ; that the " Peoples World" on many occasions quoted Brown as protesting against the arrest of numerous Com- munist officials ; that Brown was a member of the committee to elect L . C. Monjar to the Los Angeles city council as the Communist Party candidate for that office. On the basis of prior decisions of the Board and the courts , this offer of proof was rejected. Motions to strike addressed to other portions of Respondent' s answer were denied. C. The bargaining by the parties 1. Prior to the first charge Gus O. Brown, previously referred to, was the sole witness for the General Counsel, and Harry Mitzenmacher was the sole witness for the Respondent . These two men had conducted all the negotiations between the parties . In their testimony they agree substantially as to the chronology of the various bargaining meetings , but disagreed as to certain phases of certain conferences. According to the testimony of Brown, he kept a daily business diary at his office in which he noted various events connected with his work, such as telephone calls . He also kept a small pocket diary in which he noted appointments which he made. Refreshing his recollection constantly from these diaries, he was able to furnish a detailed narrative of his efforts to bargain with the Respondents Brown testified that on June 5, 1951,9 approximately 10 days after the election and approximately 20 days before the certification of the Union, he sent a letter to the Company which enclosed a copy of a proposed contract. 10 On July 2, Brown called Mitzenmacher who had handled labor relations for the Company prior to the election, and who, Brown, understood , would be the representative of the Company in bargaining negotiations. He was unable to reach Mitzenmacher. A telephone call on the following day afforded him the information that Mitzenmacher was out of town and would return in about 10 days. He was directed to call again. In the course of this phone call he asked for Erenberg, the owner of the Company, but was told that he, too, was not in On July 11 he called the Company again and was told that Mitzenmacher was not in Later in the day, Mitzenmacher called Brown, and an appointment was made. The date for which this appointment was made is not clear in the record. On July 20, Brown phoned Mitzenmacher who said that he didn' t want to do anything about negotiating a contract because at that time there was a petition pending before the Board, filed by the Union, asking for a certification of it as representative for other employees in Respondent' s plant. Brown requested Mitzenmacher to discuss the contract for the employees in the plant for whom the Union had been certified. Mitzenmacher said he did not want to 'Brown's office diary was available to both parties in the course of the hearing . As Brown refreshed his recollection, counsel for the Respondent joined with counsel for the General Counsel in examining the diary, page by page. At the conclusion of the direct examination, the entire diary was given to counsel for the Respondent for his examination prior to Brown's cross- examination. A different situation arose as to the witness ' use of the pocket diary. This pocket diary was first mentioned in the cross-examination of Brown. At one point counsel for the Re- spondent challenged a statement made by Brown, and the witness said he had a note concern- ing the event in his pocket diary. Counsel for the Respondent then requested the witness to produce the pocket diary, which he did. Thereafter counsel for the Respondent requested Brown to refer to certain pages of the pocket diary . All pages of the pocket diary which the witness thus used to refresh his recollection on cross - examination were open to the inspection of the General Counsel and counsel for the Respondent. However, counsel for the Respondent made various motions for inspection of all pages of the diary, and also made a motion for discovery of the diary. Both Brown and the General Counsel objected to the Respondent's un- limited and unrestricted examination of the pocket diary. The Trial Examiner ruled that un- der the circumstances he would limit the inspection of the diary by counsel for the Respond- ent to those portions of the diary connected with the examination of the witness . Respondent noted his exception to this ruling. 9 All the bargaining conferences and phone calls incident thereto occurred in the period June 1951 - May 1952. For the sake of brevity the years of dates in this portion of the report will be omitted. toLetter of June 5, 1951, is General Counsel's Exhibit No. 17 and the contract is General Counsel's Exhibit No. 18. Hereafter in referring to exhibits , those of the General Counsel will be designated by the letters "G C" and those of Respondent by the letter "R". DERENSON'S 281 discuss the contract in regard to those employees , as the terms of the proposed contract were too harsh. On July 25 Brown called Mitzenmacher again but was told that he was not in. Though he left a request that Mitzenmacher call hun, he did not hear from Mitzenmacher during the day. On the next day he telephoned Mitzenmacher , and asked him if the Board had notified Mitzenmacher that the Union had withdrawn its petition concerning the other em- ployees . Mitzenmacher said that he had not been so notified . Brown asked for a meeting with Mitzenmacher , but the latter countered by requesting Brown to call on the following Monday. On the following Monday , July 30, Brown telephoned Mitzenmacher , who informed Brown that he had not heard anything about the petition for the other employees being withdrawn. Ap- parently sometime after July 30, an agreement was effected between Brown and Mitzenmacher for a meeting on August 14. On that day Brown went to the plant to confer with Mitzenmacher. He was accompanied by Cuaron , a union representative , and three employees , composing the bargaining committee of the employees in the appropriate unit. Mitzenmacher came from hid private office and told Brown that he did not wish to speak to the group , that his appointment was made with Brown alone. Brown protested , stating that the employees were interested and had a right to be present . However , after conferring with the committee, Brown told Mitzenmacher that the Union would not make an issue of the presence of the employees, and he alone would confer with Mitzenmacher . Mitzenmacher then told Brown to call him for another appointment at which the men would confer . On the following day, Brown telephoned Mitzenmacher and was told 'by the switchboard operator that Mitzenmacher was not in. He requested that Mitzenmachei' call him, but he received no return call. On August 16. when he phoned Mitzenmacher , he was told the latter was tied up , and that Mitzenmacher would call Brown later. However Mitzenmacher did not call. On August 17, Brown reached Mitzenmacher by phone. Mitzenmacher said he was going away for a week and that he would see Brown on August 28. On August 28, Mitzenmacher ' s secretary called Brown and requested that their appointment be postponed until the 29th. On August 29 Mitzenmacher and Brown met at the latter ' s office for the purpose of negotiat- ing a contract. At this conference Brown produced his copy of the proposed contract, and Mitzenmacher and Brown discussed the contract.tt In the course of this discussion the men discussed all the provisions of the contract to the bottom of page 4. This discussion covered recognition, hiring procedure, checkoff of member- ship dues , authorization to check off dues, recognition , union shop, division of work, seniority, promotions , transfers, discharge. Brown testified that on the contract (GC 18) he made nota- tions from time to time. These notations were made on July 17 , August 29, and September 10, dates upon which the parties met and discussed the provisions of a contract Brown stated that his notation "OD" on the contract meant that the Company accepted that particular pro- vision, and the "No" indicated that the Ccqnpany objected to that provision. At the conclusion of the conference of August 29, Brown requested Mitzenmacher to meet with him again. Mitzenmacher told Brown to phone him later for an appointment. On September 4 Mitzenmacher ' s secretary called Brown and canceled an appointment which the men had made for that day , saying that Mitzenmacher was ill and that he would call Brown later. On November 14 Brown called Mitzenmacher and asked the latter why he had not heard from him Mitzenmacher stated that he was " snowed under" by his business affairs . Mitzenmacher said that the new proposed contract which had been prepared 6y the Union and sent to the Companyl2 was not acceptable but that he was willing to talk about it. On November 28 Brown called Mitzenmacher again , but the latter was not in. Though he requested that Mitzenmacher return his call, he received no such call . There appears to have been no contact between the parties between November 28, 1951, and January 4 , 1952 On the latter date, Brown called Mitzenmacher , who stated that he could not agree to a meeting at that time as he was tied up Mitzenmacher told Brown to call him again . On January 8 and 9 Brown called Mitzenmacher , who was not available, and although he left a request for Mitzen- macher to call, the latter did not call Brown. On January 10, 1952, Brown called Mitzenmacher in the morning , and again around noontime without reaching him. In the afternoon Brown was successful in reaching Mitzenmacher , who said that he would meet with Brown on the following Monday but that Brown should call before leaving his office for the appointment . On January 14, thedateoftheappointment. Brown' soffice received a message from Mitzenmacher' s office, canceling the appointment for that day . Brown called Mitzenmacher , and an appointment was made for the next day at 3 p .m. On the following day, at the appointed time, Brown went to Mitzenmacher's office. The latter's secretary informed Brown that Mitzenmacher had been The contract discussed by the parties is GC 18. This proposed contract is GC 20 in evidence. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called away. Brown was indignant at not being notified of the canceled appointment , and Mitzen- macher's secretary said that Mitzenmacher would call Brown and explain the situation. On January 17 Brown called Mitzenmacher and made a new appointment for January 21. In the course of this telephone conversation Mitzenmacher apologized for the failure of his office to notify Brown as to the cancellation of the prior appointment:' On January 21 Brown and Mitzenmacher met at the latter's office. Brown had his copy of the new 'proposed contract (GC 20) before him as the men talked. The representatives then discussed this contract with Brown continuing to make his notations on his copy of that docu- ment. On that day the parties discussed all remaining terms of the contract. Pursuant to these discussions. Brown prepared a third proposed contract and submitted it to the Company with a covering letter on January 24, 1952. 13 This new contract embodied the provisions upon which the parties had agreed and eliminated all those to which the Company had taken objection. The letter of transmittal dated January 24, 1952, stated that Mitzenmacher and Brown had agreed to discuss the matters of a wage increase and insurance on January 28, 1952. On that date Brown called Mitzenmacher and was told that the latter was not in. Though he left a re- quest to call, Mitzenmacher did not call him, so Brown called Mitzenmacher again. On this occasion he reached Mitzenmacher, who told him that he would probably be able to meet on the following day Mitzenmacher asked Brown to call him again On January 30 Brown called Mitzenmacher but the switchboard operator informed him that Mitzenmacher was not in but was expected later in the day, and that Mitzenmacher would call Brown. He received no such call. On February 1, when Brown telephoned, the switchboard operator told him that Mitzen- macher was in the building somewhere and would call Brown later, but he received no call. Later in the afternoon Brown talked to Mitzenmacher, who told Brown that there was some question as to whether the Union represented the employees Mitzenmacher stated that he had heard that the employees were dissatisfied with the representation afforded them by the Union, and that Teamsters Local No. 196 was active in the plant, and that Mitzenmacher was going to phone Dewberry, representative of the Teamsters, concerning the situation, and that Brown should call Mitzenmacher on the following Monday or Tuesday. On February 6, Brown received a message from Mitzenmacher that his appointment with him for that day was canceled, and that Brown should call Mitzenmacher again. On February 7 Brown called Mitzenmacher again. The latter said that he was getting some "squawks" from the men about the representation afforded them by the Union. Mitzenmacher said he would meet with Brown on the following Tuesday, February 12 On the latter date Brown called Mitzenmacher who said that he didn't know whether he wanted to meet with Brown or not Mitzenmacher again mentioned the activity of the Teamsters' Local and Teamsters' Representative Dewberry. Brown told Mitzenmacher that the Company was required by law to bargain with the Union, and that the Company was legally refusing to bargain. Mitzenmacher denied that the Company was refusing to bargain, and stated that if Brown would call him at a later date, Mitzenmacher would give Brown the Company's position as to whether he would meet with Brown or not. On February 15 Brown was unable to reach Mitzenmacher On February 19, after he had talked to Mitzenmacher a few moments, Mitzenmacher broke off the conversation, saying that he would call Brown back in a few minutes. He did not call back. On February 21, 22. 25, and 26, Brown called Mitzen- macher and was told that the latter was not in. On each occasion he left a request for Mitzen- macher to call him, but he received no call in reply. 2. The charge in Case No. 21-CA- 1352, and its withdrawal On February 27, 1952, the Union filed its charge in Case No . 21-CA- 1353, alleging that the Company had since June 25 , 1951, and at all times thereafter, refused to bargain in good faith with the Union. On or about March 28 , 1952, Max Steinfeld, field examiner of the Board, had a conference with Mitzenmacher in regard to the duty of the Company to bargain with the Union. The evidence as to the tenor of this conference is scanty . However as a result of the conference Mitzenmacher on March 28 , 1952, wrote a letter to Brown stating that " after our conversa- tions with Mr. Steinfeld of the National Labor Relations Board , we shall again attempt to negotiate with you for the purpose of attempting to arrive at a mutually satisfactory agree- ment . If you will contact the undersigned , we shall attempt to set up an appointment to go into this matter further " 14 On March 31 , 1952, Steinfeld addressed a letter to the Union stating, "Since Mr. Mitzenmacher has not indicated that he is ready to resume negotiations with you and bargain in good faith , it would seem advisable that the above -numbered charge be with- IsThe contract submitted on this date is GC 22 in evidence. 14 GC 2. DERENSON'S 283 drawn by you." Enclosed in this letter weretwo copies of the Board's withdrawal form, which when signed would effectuate withdrawal of the charge in Case No 21-CA-1353.15 On April 1, the Union executed and transmitted to the Board the withdrawal request in the above-numbered case. The withdrawal request was approved by the Regional Director on the following day. i5 3 Bargaining by parties resumed Also on March 31, Brown called Mitzenmacher again and asked hint to agree to a date upon which the bargaining conferences would be resumed. Mitzenmacher said that he was very busy, and asked Brown for a "rain check." He asked Brown to call him in the following week. On April 9 Brown was again unsuccessful in reaching Mitzenmacher. But on April 10 he talked to Mitzenmacher, and the men agreed upon an appointment for April 14 On April 14 Brown and Mitzenmacher met in the latter's office. The representatives pro- ceeded to a discussion of wages. Brown asked Mitzenmacher what wage increases had been granted to the employees by the Company since January 1950. He explained that he needed the information, because the Wage Stabilization regulations placed limits on wage increases and those previously granted had to be taken into consideration. Mitzenmacher stated that he had given some raises to the employees and was willing to give a general raise, but that he wanted a long term contract on wages. Brown said he was not prepared to come to a final understand- ing on wages until he had an opportunity to examine the wage data, which he was then request- ing. Mitzenmacher said that he would have the wage data prepared for Brown. With respect to employee insurance, Mitzenmacher said that he thought the Company could agree to the proposed insurance provision, but he wanted to check the insurance provision as compared with the insurance provision contained in the Teamsters' contract covering the employees in other units. The conference ended with the understanding that the Company would prepare the wage data requested by the Union, and that another conference would follow after Brown had an opportunity to evaluate the data. On the following day Brown called the Company. He was not able to reach Mitzenmacher, so he asked the switchboard operator if the wage data which he had requested of Mitzenmacher had been prepared She said that it had not been prepared as yet, but would give Mitzenmacher the message that Brown had called and asked for the wage data. On April 16 Brown called Mitzenmacher again but was unable to reach him, and received no return call though it was requested. On April 16 Brown called Mitzenmacher three times in regard to the wage data, and was told that Mitzenmacher was not in on each occasion. Brown called regarding the data on April 17, 22, 23, and 29. Each time he was told that Mitzenmacher was not in and though he requested that Mitzenmacher call him, he received no call from Mitzenmacher. 4 The charge in Case No. 21-CA-148 Brown testified that he never received the wage data, and that no further meetings were held with representatives of the Company On May 6, 1952, the Union filed its charge in Case No-21-CA- 148, alleging that the Company had since June 25, 1951 and at all times there- after , refused to bargain in good faith with the Union , and that the Employer had refused to supply the Union with certain requested wage data. On June 12, 1952, the Regional Director of the Board by letter to Derenson 's notified the Company that the charge in Case No 21-CA- 1353 had previously been withdrawn upon the assurance by the Company that it would bargain in good faith with the Union , and that since it appeared that the Company had not bargained in good faith with the Union, the charge in Case No 21-CA-1353 had been reinstated The General Counsel also offered in evidence a letter addressed to the Board from Samuel A Miller, counsel for the Respondent, dated June 18, 1952 This letter stated that Derenson' s desired to have a formal hearing on the charges of unfair labor practices , rather than to sign a " Settlement Agreement " in which it would admit the violations , which it emphatically denied As to the Respondent ' s reasons for its course of conduct , the letter stated: In the opinion of the writer there has been a substantial change in the personnel and in the number of employees of Derenson ' s who would now be involved so as to dispute the fact that Furniture Workers, Upholsterers and Woodworkers Local 576 is now a collective bargaining representative of the employees involved. 15 This letter is GC 3. is This withdrawal request is GC 5. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD P. S. There are other reasons for questioning the qualification of Local 576 to be the present bargaining agent for employees of Derenson' s, which will be presented at.the formal hearing if one is required to be held Brown testified in a frank and straightforward manner . As will later appear, to a large extent, his testimony is not denied by Mitzenmacher Brown ' s day-by-day recital of his efforts to bargain with the Respondent was extremely convincing. I credit his testimony. As stated previouslyi Harry Mitzenmacher was the sole witness for the Respondent. He testified that he is employed by David Erenberg , who is either the owner or the principal figure in 5 manufacturing concerns These firms are Derenson ' s, State Manufacturing Com- pany , Progress Manufacturing Company, Pearl Spring Company , and Walter Manufacturing Company . Derenson's, State, and Progress are all located on Medford Street, Los Angeles, in 4 buildings covering an area of approximately 80,000 square feet. Mitzenmacher is the comptroller , and an officer or management official in all 5 companies. There are about 450 employees in all the Erenberg enterprises. Mitzenmacher testified that Derenson' s in May 1951 was a comparatively new concern. It had a total of approximately 40-45 employees The Company began operations about May 1, 1949, with one manufacturing unit. Approximately a year later a second unit was added. When the second unit was organized the operations of the plant at Indiana Street became a "feeder" operation to the other enterprises ; it made parts for assembly in the other plants. In May 1951 Derenson' s had 23 employees. At the date of the hearing the Company employed a total force of approximately 160 employees , 145-150 being in the production and maintenance unit. While it was at the Indiana Street address , Derenson' s engaged in three distinct manufacturing operations for each of which there was a separate department . A metalworking department manufactured angle irons, and metal parts for lawn swings , studio couches, and other furniture of that type. A woodworking section, in a crude way, constructed box springs for the same type of item . A paint striping department painted canvas with color designs suitable for use in the manufacture of outdoor furniture. All operations of Derenson' s were moved from Indiana Street to Medford Street on approximately July 1, 1951. Mitzenmacher stated that Derenson's line was expanded after all operations were moved into the Medford Street location . At the time the move was made , all the manufacturing equipment was moved and the Company retained the same supervisors and the same force of employees. Mitzenmacher testified that he had supervision of all the details of the moving , including the transfer of light , power , heat , and telephone facilities and the placement of the machinery. Mitzenmacher said that while this was in progress Brown came to the Medford Street office. Brown asked if the move would mean any change as far as the Union was concerned . Mitzen- macher told him that there was no change in the situation, merely a change in the location. Brown asked permission to go into the plant and talk to the employees Mitzenmacher denied him that permission . Brown then requested that the two men discuss a contract immediately. Mitzenmacher told Brown that he had not expected him and was very busy with the moving, and asked that such a meeting be deferred . A few days later a charge of unfair labor practice was filed against the Company with the Board. It was stipulated by the parties that an unfair labor practice charge , Case No. 21-CA-1145, was filed on July 3, 1951 , alleging that the Employer had failed to bargain with the Union. On September 12, 1951, this charge was with- drawn with the approval of the Regional Director. During July Mitzenmacher met with Brown at the company office . Brown asked if Mitzen- macher had had a chance to study the contract which ' had been sent to the Company . Mitzen- macher told Brown that he had mislaid the contract or perhaps had thrown it in the waste- basket , and asked for another copy . Mitzenmacher explained that he had not thrown the contract in the wastebasket with the intention of not negotiating with the Union . At this meeting Mitzen- macher stated to Brown that he had not had a chance to study the contract and asked Brown if the contract represented the Union' s position Brown answered in the affirmative . Mitzen- macher requested time to study the proposal This conference lasted about a half hour. Mitzenmacher denied that in the course of this conference he refused to discuss wages or any other term of the contract. He also denied that at any time he gave instructions to the switch- board operator that he was " not in" to Brown . He explained that occasionally he instructs the switchboard operator that he does not wish to be disturbed , but he never made any special arrangement as to Brown . He also explained that his duties require him to be absent from the office a great deal of the time. During July the Union filed a petition for certification as representative, for. Qther of Derenson's employees than those in the unit for which the Union had been certified. In one of the meetings , Mitzenmacher told Brown that he would prefer to await the outcome of an election in the other unit before proceeding to negotiate concerning the contract for the unit for which the Union had been certified. He stated that if the parties were to negotiate they DERENSON'S 285 might as well negotiate for all the employees at one time. Mitzenmacher explained that at that time. July 1951, the employees for whom the Union had been certified were segregated from the other employees . They were in a different room and no commingling occurred. Shortly after July, however , the operations of the Company were expanded and the lines of segregation were not so well defined . The canvas striping section was eliminated , and the other sections overflowed into the other departments. On August 14, 1951, Mitzenmacher ' s secretary accounced that Brown was at the plant to seem him. Mitzenmacher went out of his office to see Brown and found him in the company of 4 or 5 employees . Mitzenmacher was shocked to see the employees with Brown as he expected only Brown. He told Brown that there was not room in his office to accommodate all the conferees and that he would not meet with them . He pointed out that his agreement was to meet with Brown alone. Mitzenmacher testified that Brown claimed that he had a right to have some of the employees with him at the conference . Mitzenmacher told Brown that he couldn't meet with him that afternoon with the employees present . Mitzenmacher told Brown that if he insisted upon having a committee with him, there were probably management representatives who Mitzenmacher should invite. Mitzenmacher stated that he canceled one appointment to meet with Brown when he was called out of town unexpectedly . He explained that he goes out of town quite frequently to visit Walter Manufacturing Company, one of Erenberg ' s companies , which is located at Oakland , California . He also makes trips to Eureka , California , concerning supplies of lumber , and trips to the South in regard to textiles . He also makes trips to San Francisco in regard to steel supplies . During the summer and fall of 1951 he made 3 or 4 trips to New York in regard to Government contracts . Mitzenmacher estimated that during the period July 1, 1951, to December 31, 1951, that he had made 10 or 12 trips out of Los Angeles. He further explained that in the same period State Manufacturing Company engaged a great deal of his time. At that time Erenberg was negotiating for the purchase of the interest of an opposing faction within the Company. The negotiations arose in July 1951 and were completed on September 16, 1951. Mitzenmacher handled all these negotiations for Erenberg . On August 29, 1951, according to Mitzenmacher , Brown and he met at his office and engaged in a conference which lasted approximately 3 hours . On this occasion Mitzenmacher went through the contract which had been submitted 17 and gave his objections , reasons, or counterproposals as to each paragraph of the contract . He stated that no agreement as to any of the provisions were reached at this conference, but that he merely stated the Company' s position. He said that in these meetings he sought to obtain a contract similar to the Company' s contract with the Teamsters. On September 10 another meeting took placewithBrown. The new contract (GC 20) had been mailed to him on October 19. On September 10, he completed the task of giving Brown his position and counterproposals as to every provision of the contract . At the conclusion of a statement of his position, it was agreed that Brown would redraft the proposals in another agreement , which would be submitted to the Company as the basis for further negotiations. Mitzenmacher testified that he had told Brown that he was sure there would be no trouble with wages , that the principal objection of the Company was to other proposals contained in the first proposed contract . Brown agreed that the representatives shguld have no trouble on the subject of wages . On November 14 Brown and Mitzenmacher met again . On this date the conferees had before them the new contract (GC 20). Mitzenmacher again went over the contract paragraph by paragraph , and made counterproposals to some sections which Brown had not eliminated from the previous contract (GC 18). In the course of this conference Brown never indicated the reaching of any agreement . Mitzenmacher explained that he did the talking and Brown did the listening. Mitzenmacher stated that he might have agreed to particular paragraphs in the course of this discussion, but he had not agreed to the contract in general. Mitzenmacher stated that he received the last proposed contract (GC 22) in a letter dated January 21, 1952. Shortly after receiving it, he was notified by the employees , through the means of a petition which was given to him , that they did not want the Company to bargain with the Union. This petition , signed by 22 employees , reads as follows: This letter is written by and on behalf of your employees who were formerly at the plant located at 1522 N. Indiana Street , Los Angeles, California, and who are now em- ployed by the plant at 2619-2623 Medford Street. We are informed that Furniture Workers Local 576, Independent , is presently certified as the collective bargaining agent on our behalf. This certification is not recent , since we, the undersigned employees , have absolutely no wish to be represented by Gus Brown's organization. We wish to emphatically state that we, the undersigned , do not belong to trThis contract is GC 18 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 576; we do not desire to be represented by Local 576; and we refuse to be repre- sented by Local 576 . We feel that from the signatures attached to this letter you will clearly see that Local 576 does not have any majority among us, and in fact does not have any substantial minority among us. (R 25) Upon receipt of the petition Mitzenmacher notified Brown, with whom he had an appointment, that he did not wish to do anything further in regard to negotiating until he had an opportunity to investigate the matter of the petition . Shortly thereafter the Company was served with an unfair labor practice charge which had been filed by the Union against the Company. 1s A few days after receipt of the charge, Max Steinfeld , field examiner of the Board , contacted Mitzenmacher . Mitzenmacher went to the offices of the Board and conferred with Steinfeld, telling him about the petition which he had received from the employees . Steinfeld told Mitzen- macher that the petition signed by the employees had no effect on the situation , and the posi- tion of the Board was that the Company under the law was required to bargain with the certified bargaining agent of its employees . As the result of this conference with Steinfeld. Mitzenmacher sent to the Board the letter previously referred to, 19 stating that in the light of the charge the Company would attempt to bargain with the Union With that understanding, the charge was withdrawn by the Union. Mitzenmacher stated he met with Brown again on April 14, 1952. At that meeting Brown requested the wage data previously mentioned . However , of the employees who had been working for Derenson's on May 27 . 1951, and who had engaged in the election , only three were working for Derenson' s on February 28. 1952. There had been a large turnover of employees since the election of May 25, 1951 Mitzenmacher testified that shortly after the meeting of April 14, 1952, he conferred with counsel for the Company, and that thereafter , acting on advice of counsel , he did not meet with Brown , supply the wage data, or answer Brown' s letters , because he had decided it would be morally and legally wrong to conclude a contract with the Union in the face of the employees' objections as represented by their petition. On cross -examination, Mitzenmacher stated that the contract (GC 22) represented a complete agreement between himself and Brown reached in the conference of November 14. He stated that at all times both Brown and he understood that the questions of wages and insurance would be no problem. He told Brown that since the employees . of the Company were organized in other unions, and the Company was then paying the union scale, that no reasonable wage request would be refused by the Company. Mitzenmacher admitted that at the time he received the petition of the employees which repudiated the Union, he suspected that the Teamsters ' Local had circulated the petition among the employees . He talked to Dewberry , the Teamsters ' representative, about the petition, but Dewberry would only say that he had talked to all the employees at a meeting and that they were in favor of the Teamsters ' Union Later Mitzenmacher learned that the Teamsters had in fact circulated the petition . Mitzenmacher also stated that he had changed the rates of pay of some employees in the unit without consulting Brown . These wage in- creases were not of a nature which required Wage Stabilization Board approval. Mitzenmacher said that the number of employees between May 15, 1951, and April 15, 1952, was substantially the same. However, after the latter date there was an increase in the working force because the Company had obtained some Government contracts, and at the time of the hearing there were approximately 80-85 persons in the unit. Concluding Findings As previously noted , Brown testified credibly. His testimony furnished a detailed account of the Union's efforts to bargain with the Company, and a detailed account of the dilatory tactics by which the Company thwarted the Union's efforts . His testimony is a narrative of telephone calls which were not returned and of appointments which were not kept by the Company. Mitzenmacher , by inference, admitted that much of Brown's testimony as to the delay in bargaining was true. Mitzenmacher sought to excuse the Company's constant delay of negotiations by explaining that he was very busy on other phases of Erenberg's activities. Even if true, that is not a valid excuse for denying to the employees the benefits of the Act. It was the duty of the Company to furnish a negotiator who could conduct negotiations with the Union with reasonable dispatch. However I am not persuaded that Mitzenmacher's failure to meet promptly with Brown was due to Mitzenmacher 's multiplicity of duties or lack of time. It is apparent that Mitzenmacher used every device to delay bargaining with the Union, "This charge is dated February 26, 1952, Case No. 21 -CA-1353. 19GC 2 DERENSON'S 287 and met with the union representatives only when a further delay would be a patent refusal to bargain Meanwhile the employees, working without a contract, became restive and ultimately dissatisfied with the representative they had previously freely chosen. It is clear that the Teamsters' Local which represented other employees in the plant was ever present to foster this dissatisfaction. There is no evidence that connects the Respondent with these efforts of the Teamsters, but it was a factor which became useful to the Company when, after 7 months had elapsed without a contract between the Union and the Company, the Teamsters was able to obtain the signatures of some of the employees in the unit to a petition purportedly repu- diating the Union. The Company suspected that the petition had been circulated by the Team- sters, and later it learned that the Teamsters had, in fact, circulated the petition , but never- theless the Respondent readily availed itself of this development to halt even the dilatory and sham bargaining which, up to that point, it had afforded the Union. Thereafter Mitzen- macher refused to meet with Brown, supply the wage data Brown had requested, or to answer Brown's letters. Viewing the course of conduct of the Respondent in its entirety, I find that the Respondent never bargained in good faith with the Union, but on the contrary sought by a tactic of delay and sham bargaining to embarrass the Union with the employees , and to thus undermine the majority status of the Union. I cannot and do not credit Mitzenmacher's testimony as to his reason for terminating the meetings with the Union. For 7 months, during which time the Union was the employees' overwhelming choice as representative, Mitzenmacher had frustrated the Union' s attempts at bargaining. In view of that conduct, I cannot credit his statement that his refusal to recognize the Union after April 14, 1952, was prompted by moral or legal considerations. At the time the unfair labor practices were committed, the Union was the established bargaining agent . Under such circumstances, a subsequent loss of majority status is conclusively presumed to be due to the employer's unfair labor practices ." The employees' petition of February 4, 1952, was therefore in- effective to relieve the Employer of his duty to bargain with the Union. Nor was the Respond- ent relieved of his duty to bargain with the Union because the number of employees in the unit had been expanded . It is well-established law that once a majority has been established as a result of a Board -conducted eleiction by secret ballot, the majority is presumed to continue for a reasonable length of time, normally for at least a year , despite personnel changes that may occur thereafter. It has frequently been held that even a substantial turnover of employees within the year does not afford proof of a loss of majority sufficient to rebut this presumption. n Upon the entire record. I find that the Respondent on and after June 28, 1951, refused and failed to bargain collectively in good faith with the Union with respect to rates of pay, hours of work, and other conditions of employment , thereby violating Section 8 (a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above, have a cl `o'se, 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 Respondent has engaged in certain unfair labor practices , it will be recommended that the Respondent cease and desist therefrom and that it take certain affirm- ative action designed to effectuate the policies of the Act. Having also found that the Union represented , and now represents , a majority of the employees in the appropriate unit, and that the Respondent has refused to bargain collectively with it, the undersigned will recommend that the Respondent upon request bargain collectively with the Union. " See Superior Engraving Co., 83 NLRB 215. 21 See The Century Oxford Manufacturing Corporation , 47 NLRB 835, enfd. 140 F. 2d 541, cert. den. 323 U.S. 714 (60 percent labor turnover and attempted employee repudiation of the union before refusal to bargain); S.H. Kress & Company , 88 NLRB 292, enfd. 194 F. 2d 449 (C. A. 6) (of 40 employees in the unit , only 7 had been on the election payroll); Worcester Woolen Mills Corporation, 74 NLRB 1071, enfd. 140 F . 2d 13 (C. A. 1) (after the unionhad won an election by a vote of 32 to 27, 12 employees left the respondent 's employ); Aetna Fire Brick Company, 56 NLRB 849 (after the union had won an election by a vote of 29 to 28, 16 new employees were hired). 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Local 576 , Furniture Workers, Upholsterers and Wood Workers Union , Independent, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees , truckdrivers, warehousemen , and helpers in the plant located on Medford Street, U Los Angeles , California, excluding office and clerical employees, watchmen, guards, salesmen, professional employees , and supervisors. as defined in the Act , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Local 576, Furniture Workers, Upholsterers and Wood Workers Union , Independent, was on May 25, 1951, and at all times thereafter has been and is the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on June 28, 1951, and at all times thereafter , to bargain collectively with Local 576, Furniture Workers, Upholsterers and Wood Workers Union , Independent, as the exclusive representative of its employees in the aforesaid appropriate unit , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act , as amended. 5. By the aforesaid refusal to bargain . Respondent has interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act , as amended. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] The address of the plant has been changed to the new address. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain collectively upon request with Local 576, Furniture Workers, Upholsterers and Wood Workers Union. Independent , as the exclusive representative of all employees in the bargaining unit described herein with respect to wages, rates of pay , hours of employment , or other terms or conditions of employment , and if an understanding is reached , embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees , truckdrivers, warehousemen, and helpers in the plant located on Medford Street, Los Angeles, California, excluding office and clerical employees, watchmen, guards , salesmen, professional employees, and super- visors, as defined in Section 2 (11) of the Act. WE WILL NOT in any manner interfere with the efforts of the above-named union to bargain collectively with us or refuse to bargain with said union as the exclusive repre- sentative of the employees in the bargaining unit set forth above. DERENSON'S, 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.