Cosmopolitan Studios, Inc.

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cosmopolitan Studios, Inc. and Blueprint, Photostat, and Photo Employees Union, AFL-CIO, Local 24910. Case No. 0-CA-6543. May 18, 1960 DECISION AND ORDER On December 3, 1959, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that Respondent Cosmopolitan Studios, Inc., had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, but finding that the Respondent had not engaged in certain other unfair labor practices, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, exceptions and briefs were filed by the General Counsel and the Respondent. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, and the entire record in the case,' including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications : 1. In affirming the Trial Examiner's finding of a violation of Section 8(a) (5) of the Act by the Respondent in its refusal to sign the agreement negotiated by the Association 2 and the Union, we rely solely on the following considerations : It is not disputed that the Union at all times here material repre- sented a majority of the employees, including those of the Respondent, in the multiemployer unit for which it bargained with the Association in February, March, and April, 1959; that the Respondent was a member of the Association at least until April 8, 1959, when it resigned therefrom; and that the Association was at least until that date authorized to bargain for the Respondent with the Union. It is clear, therefore, that until April 8, 1959, and, apart from the abortive over- ture by the Union to Respondent discussed below, the parties were in agreement, and we find, that the associationwide unit was appro- priate for purposes of collective bargaining and that the Respondent's employees were properly a, part of such a unit.' The Respondent's request for oral argument is denied as the record, including the exceptions and the briefs, adequately presents the positions of the parties a Greater New York Association of Commercial Photographers, inc. 3 We reject Respondent's contention that the only evidence adduced by the General Counsel in support of his position that the associationwide unit is appropriate is the history of bargaining pursuant to a contract providing for illegal union security. This 127 NLRB No. 102. COSMOPOLITAN STUDIOS, INC. 789 The issue is, therefore, what effect to give to Respondent's resigna- tion from the Association, in determining the appropriateness of an associationwide unit, including the Respondent's employees. We find that the- Respondent was estopped from contesting the appropriate- ness of such a unit. This finding is based on the following circum- stances, as found by the Trial Examiner. On January 13, 1959, before the associationwide negotiations began, the Union requested the Respondent (which was at that time a mem- ber of the Association, and a party to the expiring contract between the Association and the Union), to enter into separate negotiation for a new contract. By letter of January 20, the Respondent replied, as follows : I am at a loss to understand your letter of January 13, 1959, in which you purport to set forth certain demands of our em- ployees. . . . As you know, we are members of the Greater New York Association of Commercial Photographers, Inc. and as such, participate in the industrywide negotiations which are car- ried on by that Association and your local, and are bound by the results of such negotiations. [Emphasis supplied.] In reliance on this commitment by Respondent to be bound by the results of the associationwide bargaining for a new contract, the Union abandoned its request for separate bargaining, negotiated with the Association beginning on February 10, and the resulting contract was executed on April 20. Under these circumstances, we believe that the Respondent should not be permitted to avoid its obligation to bargain with the Union through the Association by withdrawing from the Association,4 and that it is estopped from doing so. Ac- cordingly, we find that the Respondent's resignation from the Asso- ciation did not relieve it of its duty to participate through the Association in bargaining with the Union, and that its refusal on and after April 8 to continue to participate in such bargaining and to sign and adhere to the contract executed by the Association on April 20 violated Section 8 (a) (5) and (1) of the Act. 2. On April 8, 1959, the day following a strike settlement between the Association and the Union on the basis of a wage increase, the Respondent also raised wages without consultation with either the Association or the Union. (On the same day the Respondent, as already stated, resigned from the Association.) The increase was contention has reference to the fact that the Association contract which the Respondent adopted in 1956 contained such an illegal clause. It is well settled that a contract con- taining such a clause does not render inappropriate an otherwise appropriate unit. How- ever, in finding the associationwide unit appropriate, we do not rely on the 1956 contract, but rather on the Respondent 's participation in the 1959 bargaining 4 See, e.g., Anderson Lithograph Company, Inc, et al., 124 NLRB 920 ; Scougal Rubber Mfg Co., Inc , 126 NLRB 470 . Member Fanning, in addition , relies on the rationale and principles set forth in Retail Associates, Inc, 120 NLRB 388. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the amount of $10 per week for each employee, consisting of a $5 raise in pay plus an additional $5 which represented the sum that the Respondent had previously deducted from each employee's pay for a pension-welfare fund, pursuant to its agreement with the Union. The Trial Examiner found that the entire $10 wage increase violated Section 8 (a) (5) and (1). In our view, however, as the Union had just negotiated with the Association, while still acting for the Re- spondent, a $5 increase in pay, we find that the Respondent's adoption of the increase was not violative of Section 8(a) (5) or (1) of the Act. Accordingly, we find that only part of the $10 increase which resulted from the discontinuance of deductions from wages for the pension-welfare fund was unlawfully granted to the employees, in violation of Section 8(a) (5) and (1). 3. On March 26, 1959, Respondent's employees were convened at the plant by the union steward and Stern, Respondent's production manager, who was also a union member and a member of the bargain- ing emit. At the meeting Stern stated, among other things, that the union welfare plan was no good; and that if the employees abandoned the Union the Respondent would contribute one-half of the cost of the Blue Cross Plan, and the employees would save $4 in union dues and also receive a $5 wage increase. The General Counsel maintained that Stern was a supervisor and, therefore, that the Respondent violated Section 8(a) (1) of the Act by reason of his conduct. The Trial Examiner found that Stern was not a supervisor, and, therefore, that Respondent did not violate the Act by reason of his statements. We agree. Moreover, we find that even if Stern was a supervisor, Respondent would nevertheless not be responsible for Stern's state- ments.' In the Montgomery Ward 6 case the Board held that an employer is not responsible for the antiunion conduct of a supervisor who, as in the case of Stern, is a union member and included in the unit, absent evidence that the employer authorized, ratified, or en- couraged the supervisor's activities or acted in such manner as to lead employees reasonably to believe that the supervisor was acting for and on behalf of management. As Stern was a union member and in- cluded in the bargaining unit, and there is no independent evidence here, such as is required under the rule of the Montgomery Ward case, supra, to establish Respondent's responsibility for Stern's activity, we would not find Respondent responsible therefor, even if Stern is deemed to be a supervisor. 4. The Trial Examiner found that during the first week of the strike, Rosenberg, Respondent's vice president, engaged in certain acts which the Trial Examiner found violated Section 8 (a) (1) of the Act, Member Fanning, in concurripg that Respondent was not responsible for Stern's con- duct, relies solely on the finding that- Stern was not a supervisor. 9 Montgomery Ward & Company, Incorporated, 115 NLRB 645, 647 ;. enfd. 242 F 2d 497 (C.A. 2). COSMOPOLITAN STUDIOS,, INC. 791 in that he advised employees that they were no longer members of the Union because they "were thrown out or walked out" of the meeting of March 27, questioned employees whether they would stay with the Union if it came back, and stated that so long as the Company did not have to make payments to the Union (i.e., to the pension-welfare fund) these sums would be paid to the men. We agree with the Trial Examiner only to the extent that we find the italicized statement was a promise of benefit in violation of Section 8 (a) (1) of the Act. In our opinion, the other statements were privileged in view of their con- text. The first statement was, we find, merely an expression of Rosen- berg's opinion as to the legal effect of the employees' expulsion from the union meeting. The interrogation of the employees as to their plans regarding reaffiliation with the Union was justified to enable the Respondent to determine whether to continue to treat the Union as the representative of a majority of its employees. (Blue Flash Express, Inc., 109 NLRB 591.) 5. Stern solicited employees during working hours to sign a decerti- fication petition, subsequently filed with the Board by another em- ployee. Citing the small size of the plant, the Trial Examiner im- puted knowledge of Stern's activities to the Respondent and concluded from this, and the failure of Respondent to repudiate Stern's con- duct, that Stern, though not a supervisor, was acting as the Respond- ent's agent in sponsoring the decertification petition. Accordingly, the Trial Examiner found that the Respondent thereby violated Sec- tion 8 (a) (1) of the Act. We disagree. In our view, whether or not Stern be regarded as a supervisor, more than appears here would be required to establish responsibility on the part of the Respondent for his activity in support of the decertification petition 7 If he was a supervisor, in view of his inclusion in the unit, the Respondent would not be liable for the activities in question absent proof of the type re- quired under the Montgomery Ward case, as stated above.s There is no such proof here. If he was not a supervisor, it follows that there is also insufficient proof here.' Accordingly, we find no violation of the Act by the Respondent on the basis of Stern's solicitation of signatures for the decertification petition. 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 T Member Fanning agrees with the result on the bases that Stern is not a supervisor (see supra, footnote 5) and that the evidence is insufficient to find Stern was acting as Respondent 's agent in sponsoring the decertification petition. 8 See Montgomery Ward d Company, Incorporated, supra. e Cf. Walter Kocher and Rose Kocher, co-partners d/b/a Walter Kocher & Co., 104 NLRB 1090, footnote 2. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that Respondent, Cosmopolitan Studios, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to sign the agreement dated April 20, 1959, negotiated with Blueprint, Photostat, and Photo Employees Union, AFL-CIO, Local 24910, by the Greater New York Association of Commercial Photographers, Inc. (b) Making or effecting any changes in rates of pay, wages, hours, or other terms or conditions of employment of its employees in the appropriate unit without first giving notice to and consulting the statutory representative of its employees. (c) Inducing employees to abandon representation by their union by promises of benefit. (d) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist the aforesaid Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Forthwith sign the said agreement of April 20, 1959.10 (b) Post at its place of business copies of the notice attached hereto marked "Appendix." 11 Copies. of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent, be posted by Respondent immediately upon receipt thereof, and maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken 10 Member Bean agrees with the finding that Respondent violated Section 8(a) (5) of the Act and with the rationale upon which such finding is based. However, he feels that the remedy provided , in effect, nullifies the above finding. The contract which the Respondent is directed to sign contains the following clause: . . upon notification by registered mail to the Union by the Association that any member is not in good standing , this Agreement shall cease as to that member." Not only is the term "member . . in good standing" ambiguous , but the clause itself can be construed to mean that the Respondent immediately after signing the contract can with- draw from , and thus break up, the multiemployer unit. Member Bean would therefore make it clear in the remedy provision that the Respondent will not be permitted to with- draw from the existing associationwide unit during the life of the contract which it is being required to sign 31 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." COSMOPOLITAN STUDIOS, INC. 793 to insure that the posted copies of the said notice are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act in respects other than those herein found. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL forthwith sign the agreement dated April 20, 1959, negotiated by Greater New York Association of Commercial Photographers, Inc., our representative in collective bargaining, with Blueprint, Photostat, and Photo Employees Union, AFL- CIO, Local 24910. The agreement covers the employees in the following unit : All employees of members of the Association, except foremen and supervisory personnel as defined in Section 2 (11) of the Act, office help, maintenance men, and outside sales- men and members of Local 230 of the New York Sign Writers Union and members of Local 65 of classifications now in the union shall remain in the union. WE WILL NOT make or effect 4ny change in rates of pay, wages, hours, or other terms or conditions of employment of our em- ployees in the appropriate unit without first giving notice to and consulting with the statutory representative of our employees. WE WILL NOT induce our employees to abandon representation by their Union by promises of benefit. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Blue- print, Photostat, and Photo Employees Union, AFL-CIO, Local 24910, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organ- ization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain , or refrain from becoming or remaining, members of any labor organization , except to the extent above stated. COSMOPOLITAN STUDIOS, INC., Employer. Dated-- -------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed by Blueprint, Photostat, and Photo Employees Union, AFL- CIO, Local 24910, herein called the Union, the General Counsel of the National Labor Relations Board, through the Regional Director for the Second Region (New York, New York), issued a complaint dated June 15, 1959, as amended, against Cosmopolitan Studios, Inc., herein called Respondent or Company, alleging the Respondent has engaged in and is engaging in acts and conduct in violation of Section 8(a)(1) and (5) of the Labor-Management Relations Act. The Respond- ent's answer admits certain allegations of the complaint but denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held at New York City on September 28, 29, and 30, 1959. All parties were present and were afforded opportunity to adduce evidence, present oral argument, and file briefs. Counsel for the Respondent filed a brief which I have fully considered. Upon the entire record, and from my observations of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The complaint alleges that the Respondent, a New York corporation, maintains its office and place of business in New York City, where it is engaged in the processing, developing, and wholesale distribution of photographs and photographic prints and related products. In its previous fiscal year the Respondent purchased film, photographic equipment, chemicals, and other materials valued in excess of $75,000, of which sum more than $60,000 represented purchases shipped directly to it from points outside the State of New York. In the same period the Respondent sold and distributed products valued in excess of $200,000, of which amount more than $100,000 represented direct shipments to places outside the State of New York. The foregoing allegations are not denied in the answer. I find the Respondent is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The complaint alleges that the Company at all times material was a member of The Greater New York Association of Commercial Photographers, Inc. (herein called the Association), which acts, inter alia, as bargaining representative and negotiates and enters into a single collective-bargaining agreement with the Union on behalf of its members. The complaint further alleges that the Association and its members constitute a single employer and the bargaining unit is described as all em- ployees of members of the Association, except foremen, office help, maintenance men, chauffeurs and outside salesmen, hot letterpressmen, and all supervisors as defined in the Act. It is alleged that since April 7, 1959, the Company has refused to sign or become a party to a collective-bargaining contract reached between the Associa- tion and the Union. The Company, in its answer, admits it was formerly a member of the Association which represents its members in collective bargaining. The Company denies the COSMOPOLITAN STUDIOS, INC. 795 Association entered into a single collective-bargaining contract on behalf of its members, that the Association and its members constitute a single employer, that the unit is appropriate for the purpose of collective bargaining , and that it refused to bargain with the Union on or about April 7, 1959. The complaint also alleges that the Company through its production manager, Robert Stern, interrogated its employees concerning their membership in and activities on behalf of the Union ; promised economic benefits if they would give up their membership in and support of the Union; circulated and sponsored the filing of a decertification petition covering the employees in the unit described above; and unilaterally changed existing wage rates and other terms of employment. The foregoing allegations are denied except that the Company admits it changed existing wage rates and other terms of employment. The principal issues are : ( 1) whether the Company withdrew from the current multiemployer Association unit before the Association and the Union reached agree- ment on a new contract, and (2 ) whether the`Company engaged in the acts and conduct set forth above. The Individuals Involved in the Proceeding At all times material herein Herman Rosenberg and Arthur J. Rosenberg were president and vice president , respectively, of the Company. Sol Stein was president of the Association and Simon Sheib was its attorney. Patrick A. McDonough was president of the Union and Mack Young was employed as business agent. B. The formation of the Association , the agreement between the Association and the Union It is undisputed and I find that prior to 1956 the Union had separate agreements with various employers in the industry including the Company . In January 1956, the Company and other employers wrote the Union that they were forming an Association for the purpose of negotiating future agreements with the Union . Later, the Association and the Union executed an agreement effective from March 1, 1956, to March 1 , 1959. Under the recognition clause of the agreement the Association and its members recognized the Union as the exclusive bargaining representative for their employees in a unit composed of: all the employees of an employer except foremen , supervisory personnel, office help, maintenance men, and outside salesmen and members of Local 230 of the New York Sign Writers Union and members of Local 65 of classifications now in the union shall remain in the union. The agreement provided that all members of the Association in good standing at the time of the execution of the agreement "shall forthwith execute a `rider' of agree- ment to the adoption of this agreement," the "rider" to be delivered by the Asso- ciation to the Union within 10 days after execution of the contract . The clause also provided that "If any member of the Association does not so adopt this Agree- ment, and if such `rider' be not delivered, then said member shall not be entitled to the benefits of this Agreement." The agreement also contained a clause stating, "The Union may or may not accept a `rider' to this Agreement of an employer not presently a member of the Association (but who hereafter becomes a member) who has an existing agreement with the Union, prior to the expiration of such existent contract. It is conceded that the Union and the Company were parties to an agreement which was effective until the latter part of 1956, so the Company did not become a parts to the Association contract at or about the time of its execution . However, on October 10, 1956, the Company executed a "rider" wherein it agreed to, ratified, and adopted the Association agreement . The Company and the Union maintained their relationship under the Association agreement without incident until a few months prior to the expiration of the contract. C. The Union's request for separate negotiations with the Company McDonough testified that in early January 1959 , the employees of the Company claimed they were performing different work from employees in other plants, namely, television work, therefore they should have a separate or individual contract with the Company. The men then presented proposed demands for a separate contract to McDonough with the request that he submit the demands to the Com- pany. On January 13, 1959, McDonough wrote the Company stating the employees had presented certain demands , which were enclosed , and asked for a meeting for the purpose of discussing the same. By letter dated January 20, the president of 795 DECISIONS OF NATIONAL LABOR RELAZIONS BOARD the Company said he did not understand the Union's communication purporting to set forth demands on behalf of its employees. He pointed out that the Company was a member of the Association and as such participated in industrywide negotia- tions conducted by the Association and the Union, consequently, the Company would be bound by the results of such negotiations. Sheib stated that Company consulted with him concerning the Union's request and that he probably dictated the Company's letter answering the request. Upon rgceiving the above letter, McDonough conferred with his attorney who advised him the Union had no right to ask for a separate agreement cover the Company's employees and McDonough made no further attempt to secure a separate contract with the Company. D. The bargaining negotiations between the Union and the Association As already stated the agreement between the parties expired March 1, 1959. McDonough and Arthur Rosenberg. were in accord that four or five meetings were held between representatives of the Union and the Association in the period from about February 10 to March 30. McDonough and Young appeared on behalf of the Union while the Association was represented by Stein and Sheib, the members also being present at the meetings, with Sheib acting as spokesman. According to Rosenberg all proposals submitted to the Union had prior unanimous approval of the members. Sheib testified that the Association had seven members during some stages of the effective period of the agreement, but two members resigned by January 1959, so that the Association had five members during the period of negotiations. Sheib further stated that at the outset of the negotiations McDonough or Young remarked the employees of the Company and another employer might not necessarily be bound by the negotiations. Sheib responded it was his position the Union "was negotiating with the Association only and that anything else was a purely internal matter of no concern to me." McDonough denied he or Young made any such remark but he admitted Sheib expressed his position as stated above, perhaps in commenting upon the Union's letter of January 13, to the Company. McDonough stated the Association made an offer of a $2 per week wage increase, which was rejected by the members of the Union at a meeting held about March 7. At that meeting the membership authorized McDonough to call a strike if and when he deemed it necessary. About 4 or 5 days later the Association offered a wage increase of $5 per week on the basis of a 2-year contract. This offer was turned down at a meeting of the membership and McDonough was criticized for failing to call a strike. About March 25, McDonough notified the membership that he was calling a strike, effective March 30. Rosenberg was aware of the fact that about March 24, the Union had refused to accept the Association's offer of $5 a week on a 2-year contract and also knew McDonough had been authorized to call a strike. On March 25, Rosenberg called a meeting of his "key employees" at the plant? In substance Rosenberg told the group a strike was a serious matter, especially in his business, for even a brief delay or shutdown would result in severe damage to the Company and loss of business to competitors. Rosenberg said he had the right to continue operations in the event of a strike and would, if necessary, hire permanent replacements to fill the jobs of striking employees. Some of the men then brought up the subject of reprisals by the Union against employees who refused to go on strike. Rosenberg assured the employees there would be no union reprisals, that the Union could not hurt them for refusing to strike and, under the Act, he could protect them. The Meeting of the Employees on March 26 It is undisputed that on the evening of the above date, MacBaisey, the union steward, and Stern called a meeting of the employees at the plant, after working hours, with the permission of Rosenberg. According to MacBaisey, all the employees of the Company (obviously those employed in the unit, numbering around 20) were members of the Union, that he notified them of the meeting and about 16 attended. Although MacBaisey was not questioned concerning thq discussions that took place it is clear he spoke in favor of the Union while Stern expressed dissatisfaction with the Union and was opposed to participating in the strike. Constantine Pandelakis, a printer, and Sidney Harris, apprentice printer, attended the meeting. According to Pandelakis, Stern told the men the union welfare plan was no good and that Blue Cross was much better. He further stated that if the 1 Robert Stern, Lionel MacBalsey, union shop steward, Nat Snitkin, Nellie Sands, Ken Walmsley, Lou Collette, and Martin Patterson. COSMOPOLITAN STUDIOS, I\ C. 797 men left the Union the Company would contribute one-half the costs of the Blue Cross Plan, that they would receive $4 union dues, and would get a $5 wage increase. Harris related, Stern said he and six other employees had met with Rosenberg the previous night and if Rosenberg did not have to contribute $20 a month to the union welfare and pension fund the employees could get more money and he would set up a Blue Cross Plan and pay half the costs. Stern mentioned that at one time he had been a member of a company union and maybe the employees could have their own union and obtain the same benefits which they had under the existing agreement. He also pointed out that the employees would save $4 a month in dues if they left the Umon. Pandelakis and Harris stated that after some discussion the employees took a vote, by secret ballot, on whether they would go on strike on March 30, and they voted 9 to 6 against going on strike. Stern was first employed by the Company in October 1953, and for about the last 4 years has been employed as production manager or foreman. He was a mem- ber of the Union for 4 or 5 years including the period of his employment as produc- tion manager and was obviously covered by the terms of the collective-bargaining agreement.2 Stern was responsible for the assignment of work through the, proper channels and to see that it was delivered to the customers on time. He also assigned overtime work, after receiving authority from Arthur Rosenberg. Stern performed various production tasks along with other employees when the plant was rushed or short handed. Ordinarily, customers would talk to Stern in regard to complaints about work and in turn Stern would take up the same with Rosenberg. He also made a note of any improper work performed by employees and apparently spoke to the workers in that connection when he considered it necessary. In the absence of Arthur Rosenberg, Stern was in charge of production. Stern said about 20 of the Company's 21 employees were present at the meeting and he informed the group he did not like the way the Union had been acting, that the employees had submitted their demands to the Union but had never received any definite word thereon from any of its representatives. He also stated he was opposed to a strike and that the employees would not benefit by such action because the Union was small and only a few of the employers in the industry were members of the Association. In brief, Stern expressed the belief the employees themselves could obtain substantially the same terms of employment as the Union but he denied promising any benefits to the men if they left the Union or refused to go out on strike. Like the above witnesses, Stern said a majority of the employees voted against striking the Company. . J The witnesses were in agreement that Stem, in the presence of the group, tele- phoned Arthur Rosenberg and informed him of the result of the strike vote. Stern then mentioned the employees wanted or were discussing a company union and Rosenberg answered the Union was in the plant and he would not talk about any company union. Stern then said the men would like to set up their own grievance committee and Rosenberg replied, maybe it could be arranged However, when Stern asked that the plan be put in writing, Rosenberg said no, that he should not even be discussing such matters with him. Stern informed the employees of Rosenberg's answer and then told Rosenberg the men were dissatisfied and he did not know if they would abide by the strike vote. Rosenberg remarked he would wait and see what happened and the conversation ended. The meeting also ended on that note. The Union Meeting of March 27 On the evening of March 27, about 20 of the employees attended a meeting at union headquarters McDonough had been informed of the employee meeting th. previous night and called his meeting for that reason and perhaps to advise the men of the pending negotiations. In any event McDonough opened the meeting by asking Stern if he had made offers to the men on behalf of the Company and Stern admitted that he had. When Stern announced he was speaking not only for the Company but for the employees, McDonough said he was a foreman and requested him to leave the meeting immediately. Stern remarked that that was good news for he had been waiting a long time to get out of the Union. However, he refused to leave the meeting because he was paid up in his dues. Young insisted that he leave and when he walked toward Stern, Stern and all except four of the employees left the meeting. Stern testified substantially the same as McDonough, except that he claimed Young approached him in a threatening manner whereupon he and all the employees, but four, left the meeting. Stern then went to the plant and informed 111 addition to the evidence herein, the agreement defines foreman and supervisor as an employee "who directs or coordinates the work of the 'employees' in the shop but does no production work ' 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rosenberg of the above occurrences. MacBaisey, Pandelakis, Harris, and Besosa remained in the hall and McDonough stated the strike would take place as scheduled, March 30, and the meeting concluded. E. The strike; negotiations resulting in an agreement between the Union and the Association On the morning of March 30, the Union went on strike against the Association members, which action was apparently effective as to all members except the Com- pany. Only four of the Company's employees, MacBaisey, Pandelakis, Harris, and Besosa, responded to the strike call and picketed the plant. The remaining 16 em- ployees refused to join the strike and continued to work. MacBaisey telephoned Rosenberg that morning that he was coming to work the next day but when Rosenberg said he was needed at once, he reported back to work that afternoon. The three -remaining strikers continued to picket the plant. On the above date Rosenberg telephoned Sheib in regard to the filing of a decer- tification petition. About April 2 or 3, Rosenberg attended a meeting of Association members and just prior to the commencement of the meeting he talked to Sheib about the situation in the plant and, as the employees had been thrown out of the Union, inquired if any positive steps should be taken by the Company such as resigning from the Associa- tion or filing a decertification petition. Sheib told him the employees might change their minds and want to go back into the Union and he did not believe any positive steps need be taken because, "You don't have to be a union shop to be a member and since you are working and you are not in any trouble, why don't you just play it cool?" Rosenberg followed Sheib's advice and remained throughout the meeting during which the members discussed proposals to be submitted to the Union, but he claimed he did not participate in the discussions. About April 3, McDonough and Sheib met with a representative of the New York State Mediation Board. Sheib stated he had just left a meeting of all Association members, Rosenberg being present, and he was authorized to offer a wage increase of $5 a week for the first year of the contract and $3 a week for the second year. McDonough declined the offer since he had been instructed by his members to de- mand a $5 increase each year of the 2-year contract. The meeting then ended. On April 7, McDonough and Stein attended a meeting of the trustees of the union welfare and pension fund. Following the meeting, Stein asked McDonough how they could settle the strike and McDonough replied he had instructions to hold out for $5 weekly increases for the first and second year. Stein said he could not go that high but he believed he could get authority to offer $5 and $4, if McDonough would consider such an offer. McDonough stated he would take it tip with the members. Stein then made some telephone calls to Association members and thereafter informed McDonough, "As far as our people are concerned, that is the offer." Stein and McDonough had no discussion regarding the position of indi- vidual Association members on the proposal. The next day McDonough presented the offer at a meeting of the union membership and it was accepted by the members. The strike was then terminated and all the striking employees, except those of the Company, returned to work. On April 8, the Company, under circumstances set forth below, submitted its resignation to the Association On April 20, the Union and the Association executed an agreement effective from March 1, 1959, to March 1, 1961, and "riders" accepting the agreement were signed by all Association members but the Company. Counsel stipulated the unit set forth in this agreement is substantially the same as the one contained in the 1956 agreement The Company does not challenge the validity or legality of the terms of the agreement. F. Rosenberg's activities during the strike; the Company's withdrawal from the Association Rosenberg admitted that in the first week of the strike some of the employees asked him if they were in or out of the Union and he replied he did not think they were members because they "were thrown out or walked out" of the union meeting. He inquired of MacBaisey and other employees whether they would stay with the Union if it came back and they answered they were through with the Union. As the Union did not call Rosenberg in the early part of the strike and made no effort to get the employees back into the Union, Rosenberg assumed the picketing em- ployees were "out of the union and they were going to leave us alone." Around that COSMOPOLITAN STUDIOS, INC. 799 time some of the employees spoke to Rosenberg about union payroll deductions and he told them: We originally wanted to give it [the money] to you people as a raise, the Association, and the union insisted it go in the pension-welfare fund, and I couldn't put the firm in a position of financially gaining from the employees walking out of the union, and I said, "If we don't have to pay it to the union, we will pay it to you." Rosenberg claimed he first learned of the settlement agreement between the Association and the Union through Sheib, on April 8. Sheib testified he telephoned Rosenberg the evening of April 7, to inform him of the settlement agreement and Rosenberg raised some question as to the status of the Company since all its employees were not on strike. The conversation concluded with Rosenberg saying the Company was not going to be bound by any agreement and he was sending a telegram to that effect, which he did. As already stated the Company submitted its written resignation to the Association on April 8. On the same day Sheib wrote the Union advising it the Company had withdrawn its authorization to the Association to bargain or enter into any agreement on its behalf, therefore, the Company should not be considered as a party to the settlement agreement. McDonough said this was the first time he learned the Company was not to be included in the settlement agreement. McDonough also stated the agreement was approved by the union membership at a meeting held on April 8. As it was necessary to call the meeting on short notice, and as all employees of Association members were on strike, except the Company, the Union simply notified the striking employees of the time and place thereof. McDonough was aware of the fact that a majority of the Company's employees were working and he did not know whether they had knowledge of the meeting. The three strikers as be recalled attended the meeting. On the morning of April 8, Pandelakis and Harris, on instructions from the Union, went to the plant and told Rosenberg the strike was over and requested reemployment. Rosenberg said the Company had not signed any agreement with the Union and he did not know whether the strike had been terminated. Pandelakis and Harris said nothing and left the plant. They resumed picketing and continued to picket for approximately 3 months 3 Snitkin and MacBaisey stated they received letters from the Union about a week or so after the strike to the effect that if they did not pay their dues for a certain number of weeks they would no longer be considered members of the Union. The letters were not offered in evidence and they could not recall the number of weeks specified therein. G. The unilateral wage increases The Company conceded that on April 8, it granted a wage increase of $5 a week, plus an additional $5 which represented sums deducted from wages for various payments to the Union. The above benefits were made retroactive to April 1. H. The decertification petition Snitkin testified that on April 17, during working hours at the plant, Stern openly solicited employees to sign a petition for the purpose of having the Union decerti- fied as the exclusive bargaining representative of all the employees involved herein. Later the same day Snitkin took the petition to the Regional Office of the Board and signed and filed a decertification petition.4 Concluding Findings The undisputed evidence shows that in January 1956, the Company and other employers formed the Association and designated it as their representative in collective-bargaining negotiations with the Union. Subsequently, the Association and the Union executed an agreement effective from March 1, 1956, to March 1, 1959, the Association members becoming signatories thereto by the execution of "riders" accepting the agreement. As the Company and the Union were parties to an existing agreement the Company did not execute its "rider" until October 1956, and thereafter it accepted and abided by the terms of the Association 3 The complaint does not allege the refusal to reinstate Pandelakis and Harris as any unlair labor practice i Case No 2-RD-448 The case was dismissed by the Regional Director on June 5 and closed on June 18, 1959 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement. Indeed, in January 1959, when the Union presented separate demands, at the request of the Company's employees, the Company summarily rejected the idea of individual bargaining and emphatically stated that as a member of the Association it would participate exclusively in industrywide bargaining and be bound by the results of such bargaining. In view of the Company's position the Union made no further attempt for individual bargaining and thereafter the Umon conducted negotiations with the Association as the representative of all its mem- bers. Throughout the period of negotiations Arthur Rosenberg attended all but one of the bargaining sessions as well as all meetings of Association members and it was not until the Union and the Association reached an agreement that the Company decided to withdraw from the Association. The Company contends there is no proof that an associationwide unit is an appropriate one or that the Association is engaged in commerce within the meaning of the Act. The position taken and maintained by the Company clearly refutes the contention that it entertained any doubt concerning the appropriateness of an associationwide unit. On the contrary the Company rejected the Union's abortive suggestion that it individually discuss terms and conditions of employment relating to its own employees and insisted that negotiations be conducted through the Asso- ciation. It is undisputed that subsequent bargaining followed that pattern, without any objection or protest on the part of the Company. There is no substantial difference in the unit alleged in the complaint and the unit described in the 1956 and 1959 contracts, except that the latter specifically excludes employees who are mem- bers of two other labor organizations in my opinion either unit is, and was, appropriate for the purpose of collective bargaining. Under the circumstances, I find the unit set forth in the 1959 agreement to be an appropriate unit,5 namely: All employees of members of the Association, except foremen and supervisory personnel as defined in Section 2(11) of the Act, office help, maintenance men and outside salesmen and members of Local 230 of the New York Sign Writers Union and members of Local 65 of classifications now in the union shall remain in the union. I further find that at all times material herein the Union had been designated by a majority of the employees in the foregoing unit and, therefore, was the statutory representative of all the employees for the purpose of collective bargaining. I agree with company counsel the record does not disclose the business operations of members of the Association, other than the Company. However, the Company's operations meet the Board's jurisdictional standards and being a member of the Association that determination, for the purposes of this proceeding, is sufficient to support a finding the Association is engaged in commerce within the meaning of the Act.6 In order to bolster the claim that its withdrawal from the Association was timely, the Company argues that at the very outset of the negotiations the Union declared the Company's contract would be "voted on separately"; that the meeting of April 3, between McDonough and Sheib at the State mediation offices was not a bargain- ing session; and that Stein did not call the Company regarding the proposed settle- ment agreement of April 7. There is no testimony to support these arguments. On two occasions McDonough, on cross-examination, specifically denied there would be separate contracts or deals for the Company and another Association member. Further, Rosenberg made no such assertion when testifying on behalf of the Company As to the second phase of the argument, it is true Rosenberg was not present at the April 3, meeting, when Sheib made the $5 and $3 offer, but McDonough quoted Sheib as stating he had just come from an Association meeting, which Rosenberg attended, and he, Sheib, had been authorized by all members to submit the proposal to the Union. Rosenberg admitted being present at the Association meeting and inquiring of Sheib whether the Company, since its employees were out of the Union, should withdraw from the Association or file a decertification petition. Sheib advised him to do nothing but "play it cool," which he did by remaining throughout the meeting while contract proposals were discussed. Rosenberg's testimony completely negates the idea he was unaware of the proposals submitted by Sheib to the Union that day, or that by reason of his subjective state of mind he was no longer participating in association- wide bargaining. McDonough was the only witness to testify concerning the pro- posal of April 7. On the basis of McDonough's uncontradicted testimony I find that 5 Safeway Stores, Incorporated, 110 NLRB 1718. O Indianapolis Cleaners and Launderers Club, 87 NLRB 472; Laundry Owners Aesoela- tion of Greater Cincinnati, 123 NLRB 543. COSMOPOLITAN STUDIOS, INC. 801 about April 7, Stein asked McDonough if the Union would consider a wage increase of $5 and $4, provided he could obtain authority to make such an offer, and McDonough promised to submit it to the membership. Stein thereupon telephoned Association members and then informed McDonough, "As far as our people are concerned, that is the offer." McDonough presented the offer to the membership and it was accepted. Rosenberg was not even asked whether he did nor did not have any conversation with Stein on the subject and Stein was not called as a witness. There is no doubt, however, that Sheib notified Rosenberg of the settlement agree- ment on the evening of April 7, at which time Rosenberg questioned the status of the Company since all its employees were not on strike. Rosenberg announced the Company would not be bound by the agreement and sent a telegram to the Asso- ciation that evening to the effect that it no longer represented the Company for the purpose of collective bargaining. The next day the Company submitted its written resignation from the Association. From the foregoing findings there can' be no doubt that the Company insisted upon negotiating with the Union in a unit comprising all Association members, that it would be bound by any agreement reached as a result thereof and that it fully participated in the bargaining negotiations. Consequently, the Company's with- drawal under the circumstances herein was neither timely nor appropriate.? Nor can it be said that the Company's decision to withdraw was motivated by any good- faith desire to bargain with the Union in an individual-employer unit or any doubt concerning the Union's majority status, but, in view of Rosenberg's unlawful course of conduct, to eliminate the Union as the bargaining representative of its employees and to escape its statutory obligation to bargain collectively with the Union in either a multiemployer unit or a single-employer unit. By the foregoing acts and conduct 1 find the Company violated Section 8 (a) (5) of the Act. In essence the General Counsel contends that Rosenberg and Stern engaged in various independent acts of interference, restraint, and coercion in violation of Section 8(a)-(1) of the Act. Insofar as Stern is concerned the General Counsel bottoms the alleged violation on the grounds that as a supervisory employee he made promises of economic benefits to the employees if they would renounce their union membership or sup- port of the Union and his activities in connection with the filing of the decertifica- tion petition. While Stern referred to his position as producton manager or man, or foreman and Rosenberg looked upon him as a foreman, I do not consider the evidence sufficiently clear to support a finding that he was a "supervisory employee" as that term is defined in the Act. Stern was responsible for the flow of work, assignment of overtime on authority of Rosenberg, the discussion, but not adjust- ment, of complaints with customers, and in charge of production during Rosenberg's absence from the plant. There is no contention that he had authority to hire, fire, promote, discipline, or reward other employees, nor did he have authority to effectively recommend such action. Moreover, Stern, at least at times, worked as a production employee, had been a member of the Union for 4 or 5 years, and was obviously covered by the terms of the 1956 collective-bargaining agreement. There is no indication whatever that the Union raised any question regarding Stern's employ- ment status or his eligibility to membership in the Union, or his inclusion in the agreement, until he took a position opposing the scheduled strike. On the evidence herein I find Stern was employed as a working foreman during the time in question and was not a supervisory employee within the meaning of the Act.8 With respect to the meeting of March 26, 1 find MacBaisey and Stern assembled the employees for the purpose of discussing the oncoming strike and the wage demands previously submitted by the employees to the Union. Unquestionably, Stern voiced dissatisfaction with the manner in which the Union had treated their demands, expressed the opinion the employees themselves could secure substantially the same working conditions as the Union, and opposed the Union's strike plan. Stern, according to Pandelakis and Harris, told the group that if they left the Union, or if Rosenberg did not have to withhold payments for the Union, the men would be given these payments, $20 a month, that they would receive a $5 weekly increase, save $4 a month in union dues, and the Company would provide a Blue Cross Plan and pay half the costs thereof. Stern denied making any such promises. I accept the testimony of Pandelakis and Harris and find Stern made the foregoing promises 4 Twenty-third Annual Report. pp. 36-37; Retail Associates, Inc, 120 NLRB 388 ; Anderson Lithograph Company, Inc, et al, 124 NLRB 920 s Foremost Dairies, Inc, 118 NLRB 1424, 1428; W. W. Wallwork Fargo, Inc, 123 NLRB 91. 560940-61-vol. 127-52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, I conclude these promises may not be considered as a basis for a finding of unfair labor practices on the part of the Company since Stern was not a super- visory employee and there is no evidence he was authorized to make any such offers on behalf of the Company. From his own testimony, I find Arthur Rosenberg, during the first week of the strike, advised employees, in answer to their inquiries, that they were no longer members of the Union because they "were thrown out or walked out" of the meeting of March 27. He also questioned MacBaisey and other employees whether they would stay with the Union if it came back and they said they were through with the Union. Speaking on union payroll deductions, Rosenberg informed the employees that from the very beginning he preferred to give equivalent sums to the men di- rectly as wage increases but the Union insisted such sums go into the pension- welfare fund. Continuing, he assured the employees the Company did not want to profit by their leaving the Union, so as long as the Company did not have to make payments to the Union, these sums would be paid to the men. It is conceded that on April 8, the Company granted the employees a $5 a week increase and an ad- ditional $5 a week representing the amount previously deducted for the Union, all payments being retroactive to April 1. By the foregoing acts and conduct the Com- pany thereby violated Section 8(a)(1) of the Act, and by unilaterally granting wage increases and other benefits the Company also violated Section 8(a)(5) of the Act. The record shows that Stern openly solicited employees during working hours to sign a petition to decertify the Union and the petition was filed by Snitkin on April 17. There is no direct evidence that Rosenberg or any other company representa- tive authorized Stern to engage in decertification activities. While Rosenberg ad- mitted he spoke to Sheib on two occasions around April 3, in regard to decertifica- tion procedure, he was not questioned about the petition which was actually filed. Having found Rosenberg engaged in a course of conduct designed to eliminate the Union from the plant, it strikes me that the filing of a decertification petition would logically follow as the final step in that plan. Since Stern's opposition to the Union was well known it is not surprising that he openly solicited employees to sign the petition during working hours. There is no indication that any company representa- tive made any objection to this procedure. The plant was a small one, so knowl- edge of Stern's activities may be properly imputed to the Company. Of course, if Rosenberg was absent that day Stern was in charge of the plant, at least as far as production was concerned. Again, there is no evidence that the Company, or Rosen- berg, ever repudiated Stern's actions. Considering Stern's activities in the context of the Company's unlawful conduct I am of the opinion, and find, that the evidence warrants the conclusion that Stern was acting as the Company's agent in these de- certification activitities.9 I, therefore, find the Company engaged in conduct in violation of Section 8(a) (1) of the Act IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found the Respondent has engaged in and is engaging in unfair labor prac- tices in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent refused to bargain with the Union by failing and refusing to be bound by and to execute the contract negotiated on its behalf by the Association, its duly authorized bargaining representative, I shall recommend that the Respondent execute the said contract and effectuate it according to its terms. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Company and the Association are engaged in commerce within the mean- ing of the Act. 2. The Union is a labor organization within the meaning of the Act. 9Birnningham Publishing Company, 118 NLRB 1380, enfd 262 F. 2c1 2 (CA. 5) ALTERMAN TRANSPORT LINES, INC. 803 3. All employees of members of the Association , except foremen and supervisory personnel as defined in Section 2 (11) of the Act , office help, maintenance men, and outside salesmen and members of Local 230 of the New York Writers Union and members of Local 65 of classifications now in the Union shall remain in the Union, constitute a unit appropriate for the purpose of collective -bargaining within the meaning of Section 9(b) of the Act. 4. At all times since March 1, 1956, the Union has been and now is the exclusive representative of all the employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to execute and abide by the terms of the contract executed with the Union on its behalf by the Association, dated April 20, 1959, and by unilaterally granting wage increases and other benefits to the employees, the Company has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (5) and (1) of the Act. 6. By sponsoring and sanctioning the circulation of -a petition to decertify the Union and by making promises of benefits to discourage membership in the Union, the Company thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act. 7. By interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. 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.] Alterman Transport Lines, Inc. and Jack E.- Pope and Edward M. Hawks and Truck Drivers, Warehousemen and Helpers Local Union No. 512, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases Nos. 1,0-CA-939, 1,°L-CA-964, and 11-CA- 1104. May 18, 1960 DECISION AND ORDER On February 24, 1960, Trial Examiner Eugene Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom nd take affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers yin connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following modification. 127 NLRB No. 100.