American Loose Leaf Corp.

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerks, and production control dispatchers. The record reveals that employees in the first six of these classifications perform the technical functions necessary for the translation of engineering blueprints and designs into the graphic and written instructions and specifications required to direct the actual fabrication of tools and the assembly of the aircraft and its subassemblies. They include all the technical employees in the tooling subdivision. Employees in the last five of the above-listed job classifications-the duplicating machine operators, clerks, and dispatchers-although they work in close association with the planners and may be promoted to lower planner classifications-are engaged entirely in clerical work. The record in this case does not establish to our satisfaction that the unit sought includes all the technical employees working in the many subdivisions of the Employer's Tulsa division plant. For this reason 2 and because the unit requested by the Petitioner also includes non- technical employees, we find the requested unit inappropriate for the purposes of collective bargaining and shall dismiss the petition. [The Board dismissed the petition.] 9 See Douglas Auroraft Company, Inc, 92 NLRB 702, at 703; E. I. Dupont de Nemours and Company, Inc, 107 NLRB 734, at 740. American Loose Leaf Corporation and Bookbinders & Machine Operators Union No. 25, International Brotherhood of Book- binders, AFL. Case No. 2-CA-4261. August 1, 1955 DECISION AND ORDER On May 25, 1955, Trial Examiner Arthur Leff issued his Interme- diate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging 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. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor 113 NLRB No. 49. AMERICAN LOOSE LEAF CORPORATION 445 Relations Board hereby orders that the Respondent, American Loose Leaf Corporation, New York, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain with Bookbinders & Machine Operators Union No. 25, International Brotherhood of Bookbinders, AFL, as the exclusive representative of all production and maintenance em- ployees at the Respondent's New York, New York, plant, excluding all office clericals, guards, professional employees, and supervisors as defined in the Act. (b) Interfering in any manner with the efforts of Bookbinders & Machine Operators Union No. 25, International Brotherhood of Book- binders, AFL, to bargain collectively with the Respondent on behalf of the employees in the aforesaid bargaining unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with Bookbinders & Machine Operators Union No. 25, International Brotherhood of Bookbinders, AFL, as the exclusive representative of all employees in the bargain- ing unit described herein with respect to wages, rates of pay, hours of employment, or other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its New York, New York, plant, copies of the notice attached to the Intermediate Report and marked "Appendix A." 1 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by a representative of the Respondent, be posted by it for a period of sixty ( 60) consecu- tive days thereafter in conspicuous places, including all places where notices to the employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (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. I This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption 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 " INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been filed by Bookbinders & Machine Operators Union No. 25, International Brotherhood of Bookbinders, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York City), issued his complaint, dated April 22, 1955; against American Loose Leaf Corporation, herein called the Respondent , alleging in 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substance that the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, by refusing, since on or about March 7, 1955, to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit. The Respondent in its answer denied the commission of unfair labor practices and set out certain alleged affirmative defenses more fully to be adverted to below. Pursuant to notice, a hearing was held on May 9, 1955, at New York City, before Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented at the hearing by counsel and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing a motion by the Respondent was denied to strike from the complaint an allegation thereof that the Respondent had violated Section 8 (a) (1) of the Act, in addition to Section 8 (a) (5), by refusing to bargain with the Union. At the close of the hearing, a motion of the General Counsel was granted, to conform the pleadings to the proof with regard to minor variances. Opportunity was afforded all parties to argue orally upon the record and to file briefs and proposed findings and conclusions. On May 23, 1955, the Re- spondent filed a brief and proposed findings of fact and conclusions of law, which have been considered. At that time, the Respondent also filed a motion for an order requiring the Union to supply the Board with a copy of a document adverted to in the testimony of a witness. The motion is denied.' Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT American Loose Leaf Corporation, a New York corporation, with its principal office and place of business in New York City, is engaged in the manufacture, sale, and distribution of loose leaf binders and related products. During the year preced- ing the issuance of the complaint, the Respondent manufactured, sold, and distributed products valued in excess of $200,000, of which products valued in excess of $100,000 were shipped from its New York City plant in interstate commerce to States of the United States other than the State of New York. The Respondent admits that it is engaged in commerce within the meaning of the Act. _9 II. THE LABOR ORGANIZATION INVOLVED Bookbinders & Machine Operators Union No. 25, International Brotherhood of Bookbinders, affiliated with the American Federation of Labor, is a labor organ- ization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES Upon a petition for certification duly filed by the Union in Case No. 2-RC-7136, and after hearing held thereon, the Board, on January 19, 1955, issued a Decision and Direction of Election in which it directed an election in a unit of the Respondent's employees consisting of all production and maintenance employees at the Respond- ent's New York- City plant, excluding all office clericals, guards, professional em- ployees, and supervisors as defined in the Act-the unit found by the Board to be 'appropriate, and which I likewise find to be appropriate, for the purposes of collec- tive bargaining within the meaning -of Section 9 (b) of the Act. On February 11, 1955, an election by secret ballot was conducted under the supervision of the Re- gional Director for the Second Region. Upon conclusion of the election, a tally of ballots was furnished to and certified by the observers for the Union and the Respondent. The tally showed that of approximately 85 eligible votes, 83 cast lAithough the motion is directed to the Board rather than to the Trial Examiner, it is here treated as if it had complied with the procedural requirements of the Board's Rules and Regulations, providing that motions of this kind be addressed to the Trial Examiner before transfer of the case to the Board The Respondent's present motion is untimely. Though it might have done so then, at the hearing the Respondent neither moved for an order requiring the production of the document it now seeks, nor did it attempt to invoke the subpena processes available to it for the production of that document. Moreover, even if"the document showed what the Respondent speculates it might show, it would neither establish the Respondent's contention that the Union 'line no intention to bargain for all employees in the appropriate unit in this case, nor alter'tlie ultimate findings of'fact and conclusions of law made below. AMERICAN LOOSE LEAF CORPORATION 447 Valid ballots of which 50 were in favor of representation by the Union and 33 against. No objections to the election or to its conduct were filed within the time provided therefor. On February 21, 1955, the Board certified the Union as the bargaining representative of the employees in the said appropriate unit. His found that at all times-since February 21, 1955, the Union was, and now is, by virtue of Section 9 (a) of the Act, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. On March 4, 1955, the Union by letter requested the Respondent to bargain collectively with it as the exclusive representative of the Respondent 's employees in the unit found appropriate above. In a letter to the Union, dated March 7, 1955, the Respondent refused to bargain, and to that position it still adheres. In defense of its refusal the Respondent contends that: (1) The unit for which the Union seeks to bargain is not an appropriate one; (2 ) the Respondent was denied a fair hearing in the representation proceeding and that the Board 's Direc- tion of Election in that proceeding was therefore invalid ; and (3 ) the Union "has neither the capacity nor the intention to bargain for all the employees embraced within the certified unit." The Respondent's first contention, that the bargaining unit is an inappropriate one, was fully litigated before the Board in the representation proceeding and was ruled upon by the Board adversely to the Respondent. The Board's ruling on that issue represents the law of this case, binding upon me. The Respondent in this complaint proceeding offered no new or additional evidence on the unit issue, but merely declared its purpose, as is its right , to test the validity of the Board 's earlier unit determination in the circuit court of appeals on the basis of the evidence adduced in the representation hearing. The Respondent's second contention , relating to the alleged unfairness of the representation hearing, is predicated upon ( a) the refusal of the hearing officer in the representation proceeding to disqualify himself for alleged prejudice; 2 and (b) the hearing officer's exclusion during the representation hearing of testimony which, according to the Respondent, would have established that the Union neither intended to nor had the capacity to bargain for and represent all employees in the appropriate unit. The hearing officer's denial of the Respondent 's disqualification motion was specifically considered by the Board and explicitly affirmed by it in its Decision and Direction of Election. It is no longer an open issue in this case, at least not at this level of the complaint proceeding. The hearing officer's exclusion of the proffered evidence was not explicitly adverted to in the Board's Decision and Direction of Election. However, the general finding therein made, that the hearing officer's rulings were free from prejudicial error , may be read as an affirmance by the Board of the hearing officer's rulings in that regard. In any event, even were there error in the exclusion, such error must be viewed as having been cured at the hearing in this complaint proceeding, where the Respondent was allowed, over objection of the General Counsel and the Union, to adduce evidence to support its third contention which is considered below on its merits. At the hearing, the Respond- ent's counsel conceded that the evidence so adduced covered in substance the matter the Respondent claims it was improperly prevented from introducing at the repre- sentation hearing. The Respondent's third contention, and the one it principally stresses in this pro- ceeding, that the Union has neither the capacity nor intention to bargain for all employees in the appropriate unit, is based upon what the Respondent asserts to be certain constitutional restrictions on admissions to membership in the Union and on the scope of the Union's representational jurisdiction. More precisely, the Re- spondent submits that the Union is unauthorized under its own governing laws to admit into membership or to represent the female employees in the bargaining unit. On that basis, as well as on the basis of other existing contracts in the industry, it asks the Board to infer an intention on the part of the Union to represent only male employees in the bargaining unit and to assign the representation of female employees to a sister local of its parent International. As evidentiary support for its position the Respondent points: ( 1) To a provision in the International 's constitution implying that except in cities where local conditions do not permit the formation of a separate women's local, female members are to be grouped in separately chartered 2 At the representation bearing the Respondent unsuccessfully moved to have the hear- ing officer disqualify himself, asserting that the hearing officer had shown prejudice by ex- pressing his opinion in a preliminary conference that a production and maintenance unit such as was sought by the Union was an appropriate one. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD locals distinct from the male locals; (2) to a provision in the Union's local constitu- tion and bylaws that may be read as confining trade jurisdiction in the Union only over male bindery employees along with female gold layers, to the exclusion, however, of all other female employees within the International's general jurisdictional sphere; (3) to the fact that the Union has a sister local in New York City, known as Local 43, Women's Bindery Workers, that is composed exclusively of female bindery work- ers; (4) to other contracts in the bookbinding industry in New York City, showing that in the past separate bargaining units were established for male employees and for female employees, respectively, except for female gold layers who are included in the male units, with the male units represented by the Union and the female units by its sister local, each local having its own contract, (5) to the fact that on a previous occasion-in 1937-the Union, after having petitioned the Board for certification as the representative of both male and female employees of another employer, entered into a collective-bargaining agreement with that employer covering only male em- ployees, arranging to have the female employees separately represented by its sister local; 3 and (6) to a statement made in 1937 to the Respondent's counsel by an unidentified union representative during the negotiations involving that other employer to the effect that although under established union practice a single petition had been filed by the Union for a unit of all bindery employees, for purposes of actual bargaining the unit would have to be split up into male and female com- ponents, each represented by a separate local. The Respondent, however, made no claim that with specific reference to the bargaining unit involved in this proceeding the Union had ever stated to the Respondent that it did not intend to represent and bargain for all employees, both male and female, in the appropriate unit for which it had been certified, and the only record evidence on that point is to the contrary. The Union at the hearing disputed the Respondent's assertion that it was barred by its own governing laws from admitting into membership or acting as the repre- sentative of all employees of the Respondent in the appropriate unit, male as well as female. Uncontradicted and credited testimony was adduced to show that the Union does number among its membership some female workers other than gold layers. Moreover, Jacob Neumeyer, the Union's business representative, testified that the Union within the past year had been officially and specifically authorized and advised by its International to organize, accept into membership, represent, and bargain for all employees-male and female-in specialty shops such as that operated by the Respondent. More significantly, Neumeyer testified unequivocally that it was the Union's intent when it filed its representation petition in Case 2-RC-7136, and that it still is its intent, to represent and bargain for all employees in the appropriate bargaining unit found above. Neumeyer further testified that with respect to that unit the Union has no arrangement with Local 43 under which the representation of female em- ployees is to be assigned to that local, and that the Union had no intention of turning over to its sister local bargaining rights for any employees in the unit. As the Board has frequently held under similar circumstances, it is not the eligibility of employees to membership nor the exact extent of a union's constitutional juris- diction, but its willingness to represent all the employees in the bargaining unit, that is controlling on an issue of this kind. The Stickless Corporation, 110 NLRB 2202; Gusdorf & Son, 107 NLRB 998; Buzza Cardoza Company, NLRB 40; Fox DeLuxe Foods, Inc., 96 NLRB 1132. In this case, the evidence relied upon by the Respondent is found insufficient to overcome the Union's unequivocally declared willingness and intent to represent and bargain for all in the unit it has been chosen to represent. The fact that the Union in the past has divided with its sister local the representation of male employees and female employees, respectively, in organized shops of other employers, is not alone enough to establish that it will similarly do so with regard to the Respondent's employees. Particularly is this so since it appears that the divided representation has occurred in situations where, unlike here, there was no Board certification or unit finding, and the separate male and female units bargained for were voluntarily agreed upon by the employers. Under the law, the Union as the certified agent is required to represent equally and to bargain for all in the unit for which it has been certified. Should it fail to do so, the Respondent will then be in a position to petition the Board to revoke the Union's certification, and there would also be available to the Respondent those remedies which exist by virtue of the un- s It was conceded, however, that the Board had neither made a unit finding nor issued a certification in that situation, the representation petition having been withdrawn with the consummation of collective- bargaining agreements covering units to which the em- ployer voluntarily agreed. AMERICAN LOOSE LEAF CORPORATION 449 fair labor practice sections of the Act. Hughes Tool Company, 104 NLRB 318; Pacific Maritime Association and Its Member Companies, 110 NLRB 1647; see also N. L. R. B. v. Pacific American Shipowners Association, 218 F. 2d 913 (C. A. 9). The least that should be expected of the Respondent, if it would justify a refusal to bargain on the ground that the Union is unwilling to do what the law requires, is that it put the Union's intent to an actual test. This the Respondent has not done by its premature refusal to meet and negotiate with the Union without so much as at- tempting first to verify whether with respect to this particular unit the Union's intent is what the Respondent claims it to be. For the reasons indicated above, I reject the Respondent's various contentions, and conclude and find on the record as a whole that the Respondent at all times since March 7, 1955, in violation of Section 8 (a) (5) of the Act, has refused to bargain with the Union as the exclusive representative of the employees in the above-found appropriate unit. I further find that the Respondent has thereby interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 4 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, it will be recommended that the Respondent upon request bargain collectively with the Union. Upon the basis of the above findings of fact, and upon the entire record in the cas, I make the following: CONCLUSIONS OF LAW I. Bookbinders & Machine Operators Union No. 25, international Brotherhood of Bookbinders, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the Respondent employed at its New York plant, exclusive of all office clericals, guards, professional employees, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since February 21, 1955, the Union has been the exclusive repre- sentative of all employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. By refusing to bargain collectively with the Union as the exclusive representa- tive of the employees in the appropriate unit on March 7, 1955, and thereafter, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By said acts the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby 4 Following the hearing, the Respondent submitted 12 itemized requests for findings of fact and 4 itemized proposed conclusions of law to be ruled upon by the Trial Examiner The requested findings of fact are disposed of as follows. Item 6 is adopted to the extent indicated in the findings made above, items 1-5, 7, 8, and 11 are either not substantially supported in whose or in some aspect thereof, or are so materially qualified by other record evidence as to supply in the pi ecise form presented, an incorrect meaning in whole or in part, and consequently they are iejected for one os more of such reasons, except for such portions thereof as are clearly consistent with express findings made above. Items 9 and 10 involve questions of law rather than findings of fact, and are sufficiently dealt with in the analysis of the Respondent's contentions made above. Each of the Respondent's pro- posed conclusions of law is rejected for the reasons stated in the body of this report._ 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT engage in any acts in any manner interfering with the efforts of Bookbinders & Machine Operators Union No. 25, International Brotherhood of Bookbinders, AFL, to negotiate for or represent the employees in the bar- gaining unit described below. WE WILL bargain collectively, upon request, with Bookbinders & Machine Operators Union No. 25, International Brotherhood of Bookbinders, AFL, as the exclusive representative of all the employees in the bargaining unit described herein , with respect to rates of pay, wages, hours of employment, or other conditions of employment , and if an agreement is reached, embody it in a signed contract . The bargaining unit is: All production and maintenance employees employed at our New York plant, exclusive of all office clericals, guards, professional employees, and supervisors as defined in Section 2 (11) of the National Labor Relations Act. AMERICAN LOOSE LEAF CORPORATION, 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. Cessna Aircraft Company, Wichita Division and International Brotherhood of Electrical Workers, Local 271, AFL, Petitioner. Case No. 17-RC-2002. August 1, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles A., Fleming, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer z 1 The Employei 's motion to dismiss the petition on the grounds that the Petitioner failed to make a proper showing of interest in the unit as amended , is denied. The showing of interest is an administrative matter ; and , in any event , the unit hereinafter found to be appropriate is the same as the one originally petitioned for. R International Association of Machinists , District Lodge No. 70, AFL, was permitted to intervene on the basis of its current contractual interest. 113 NLRB No. 48.