David Kahn, Inc.

In the Matter of DAVID KAHN, INC. and COMMITTEE FOR INDUSTRIAL ORGANIZATION In the Matter of DAVID KAHN, INC. and MECHANICAL PENCIL AND PEN WORKERS OF DAVID KAHN, INC., ASSOCIATION Cases Nos. C-919, R-954, and R-955.-Decided August 8, 1939 Pen and Pencil Manufacturing and Selling Industry-Interference, Restraint, and Coercion: discharge of one employee for joining the outside union and threat to discharge others for opposing the company-dominated union-Com- pany-Dominated Union: supervisory participation in the formation of the inside union ; urging employees to form and join inside union ; expressed opposition to outside union; employer ordered to disestablish-Unit Appropriate for Col- lective Bargaining: all production and maintenance employees, and stock, receiving, and shipping clerks who are not principally engaged in clerical work, excluding foremen, assistant foremen or subforemen, other supervisory em- ployees, watchmen, engineers (if any), the truck .driver, home workers, clerical workers, and stock, receiving, and shipping clerks who are principally engaged in clerical duties ; stipulation as to-Representatives: proof of choice : member- ship in union: majority status held by company-dominated union-Collective Bargaining: allegation of refusal to bargain dismissed, because evidence did not sustain outside union's claim that it represented a majority-Investigation of Representatives: controversy concerning representation: employer refused to meet labor organizations involved until such time as the Board should decide which union has a majority status-Election: ordered : at such time as the Board may hereafter direct ; company-dominated union excluded from ballot. Mr. Gordon O'Hanlon, for the Board. Spingarn ct Sachs, by Mr. Samuel Spingarn, of Union City, N. J., for the respondent. Mr. Wilbur L. Ross and Mr. Aaron A. Melnicker, both of Jersey City, N. J., for the Association. Mr. Jerome Jacobson, of New York City, for the C. I. O. Mr. Roscoe L. Barrow, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon charges duly filed by the Committee for Industrial Organ- ization, herein called the C. I. 0., the National Labor Relations 14 N. L. R. B., No. 24. 299 300 DECISIONS OF NATIONAL LABOR RELATION'S BOARD Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated October 13, 1937, against David Kahn, Inc., herein called the respondent, alleging that the respondent had engaged in and. was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. In the original charges the respondent was also charged with having vio- lated Section 8 (5) of the Act. During the hearing the complaint was amended. The amendment alleged that the respondent had en- gaged in and .was engaging in an unfair labor practice within the meaning of Section 8 (5) of the Act. With respect to the unfair labor practices, the complaint, as amended, in substance alleged (1) that on or about July 1, 1937, the respondent initiated, formed, and sponsored a labor organization known as the Mechanical Pencil and Pen Workers of David Kahn, Inc., Association,, herein called the Association; (2) that the respond- ent's supervisory employees recruited membership for the Associa- tion on company property and time; (3) that the respondent made membership in the Association a condition precedent to employ- ment; (4) that the respondent permitted the Association to hold meetings on company property and time; (5) that the respondent afforded the Association the use of its office facilities and otherwise contributed to its support; (6) that the respondent dominated and. interfered with the administration of the Association; (7) that on or about June 1937 and thereafter, the respondent urged, persuaded, and warned its employees to refrain from becoming members of the C. I. O. and threatened its employees with discharge if they should join the C. I. O. or if they should not join the Association; (8) that the respondent threatened to close down its plant if its employees should join the C. I. 0.; (9) that the respondent kept the meetings of the C. I. O. under surveillance; (10) that on or about June 29 and 30, 1937, and several times thereafter, the C. I. O. asked the respond- ent to bargain collectively with it, and the respondent refused to bargain, although the C. I. O. had been designated bargaining repre- sentative by a majority of the respondent's employees in an appro- priate unit; and (11) that by these and other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thereafter the respondent filed its answer denying that it had engaged in the unfair labor practices alleged in the .complaint as amended. It admitted that its employees have had, a social and athletic club known as David 'Incorrectly designated in the complaint as "Mechanical Pencil and Pen workers' Union of David Kahn, Inc." DAVID KAHN, INCORPORATED 301 Kahn Employees' Association for several years; that it provided a recreation hall and other facilities for the use of its employees; that it has permitted its employees to meet in the recreation hall from time,to time; and that during the latter part of June 1937, upon request of certain employees, it granted the employees permission to hold a meeting in the recreational hail after working hours. It de- nied that it knew to .which labor organization the employees request- ing. the use of the hall belonged, and stated that it refused to permit meetings to beheld there after it discovered that a labor organization had been formed. On August 3, 1937, the C. I. 0., and on August 5, 1937, the Associa- tion, filed with the Regional Director for the Second Region petitions alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent, and requesting an. investigation and certification of representatives pursuant to Section 9 (c) of the Act. On September 4, 1.937, the Board, acting pur- suant to Section 9 (c) of the Act and Article' III, Section 3,. of National Labor Relations Board Rules and Regulations-Se- ries 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appro- priate hearing upon clue notice, and acting pursuant to Article. III, Section 10, of said Rules and Regulations, further ordered that,. for purposes of hearing, the cases based upon the petitions be consoli- dated with the case based upon the complaint, and that one record of' the hearing be made. Copies of the complaint., accompanied by, notice of hearing, and notice of hearing in the representation cases,. were duly served on the respondent, the Association, and the C. I. O. Pursuant to notices and amended notices, a hearing on the peti- tions and the complaint was held at Newark, New Jersey, on July 12, 13, 14, and 15, 1938, and at New York City on July 19, 1938,. before Herbert' A. Lien, the Trial Examiner duly designated by the Board. The Association was permitted to intervene in the case based upon the complaint to the extent that its interests were involved. All parties were represented by counsel, participated in the hearing,. and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. On September 14, 1938, the Trial Examiner issued his Intermediate' Report in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act, but that the respondent had not engaged in an unfair labor practice within the meaning of Section 8 (5) of the Act. Accord- ingly, he recommended that the respondent cease and desist from the unfair labor practices and that it withdraw recognition from and r 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD completely disestablish the Association as the collective bargaining representative for any of its employees. He further recommended dismissal of the allegation that the respondent had refused to bar- gain collectively within the meaning of Section 8 (5) of the Act. Thereafter, the respondent filed exceptions to the Intermediate Report. The Board has reviewed all the rulings of the Trial Ex- aminer on motions and on objections to the admission of evidence, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has also considered the exceptions to the Intermediate Report and except in so far as they are con- sistent with the findings, conclusions of law, and order below, finds no merit in them. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT David Kahn, Inc., is engaged at its plant at North Bergen, New Jersey, in the manufacture and sale of fountain pens, mechanical pencils, and related products. The essential raw materials used in its operations are pyroxylin, brass, rubber, gold pen points, and steel pen points. The respondent is one of the largest concerns in the country manufacturing low-priced fountain pens and mechanical pencils. Approximately 40 per cent of the raw materials used by the re- spondent are shipped to its plant at North Bergen from points out- side New Jersey. Approximately 95 per cent of the respondent's finished products are shipped to customers located outside New Jer- sey. The respondent stipulated at the hearing that it is engaged in commerce within the meaning of Section 2 of the Act. H. THE ORGANIZATIONS INVOLVED The Committee for Industrial Organization and Mechanical Pencil and Pen Workers of David Kahn, Inc., Association are labor or- ganizations, each of which admits to membership all production and maintenance employees of the respondent, including stock, receiving, and shipping, clerks whose duties are mainly non-clerical, and ex- eluding foremen, assistant foremen or subforemen, other supervisory employees, watchmen, engineers (if any), the truck driver, home workers, clerical employees, and all stock, receiving, and shipping clerks who are engaged mainly in clerical duties. DAVID KAHN, INCORPORATED III. THE UNFAIR LABOR PRACTICES 303 A. Interference, restraint, and coercion; domination of and inter- ference with the formation of the Association Prior to June 1937 there was no union activity in the respondent's plant. During June 1937 Textile Workers Organizing Committee, an affiliate of the C. I. 0., initiated organizational activity among respondent's employees. The campaign was conducted by solicita- tion and by the distribution of circulars outside the plant. During June the campaign made considerable progress. Almost all the 167 C. I. O. membership cards received in evidence during the hearing were obtained before June 25. On June 17 Marie D'Anna, an employee of the respondent, joined .the C. I. O. On the following day, Harry Yaeger, the vice president and factory superintendent of the respondent, questioned her about her union activity. He asked her why she was dissatisfied. D'Anna replied that the C. I. O. promised to obtain higher wages, shorter hours, and five holidays each year for the employees. Yaeger advised D'Anna that he had authority to discharge her. D'Anna then con- .fessed that she had joined the C. I. O. on the previous day, and Yaeger, discharged her. On the following day D'Anna returned, accompanied by Al Barkan, subregional director of the Textile Workers Organizing Committee. Barkan talked to Sam Kahn, D'Anna's foreipan, averring his belief that D'Anna had been dis- charged for union activity and stating that he would file charges with the Board unless D'Anna was reinstated. She was immediately reinstated. Yaeger denies that he discharged D'Anna. He testified that he merely warned her that if she continued to talk to the other girls and to disregard her work she could "get her pay." But in the light of surrounding circumstances we must give D'Anna's testimony the greater weight. She talked to Yaeger after she was subpenaed to testify at the hearing and told him what her testimony would be. During the hearing she was obviously reluctant to testify against the respondent, and her story as set forth above.rings true. We find that Yaeger discharged D'Anna'because she had joined the C. I. O. About June 23 Viola Blumensteel, an employee of the respond- ent, circulated a petition through the plant. In substance the petition stated that the signatories were in favor of a company union. Blumensteel was discouraged by the attitude of the C. I. O. mem- bers, who called her names, and she quit circulating the petition. Another employee, Bella Colombo, continued its circulation. Sam 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kahn, one of the res^oudent's foremen, urged the employees to sign the petition. Margaret Prina, an employee, testified that Kahn told the girls they had better sign the petition because this was a good union while the C. I. O. was an outside organization and charged too much for dues. Mary Conte, an employee, told Kahn that she did not wish to sign the petition. He told her that it merely indicated a desire to call a meeting of the employees. Thereupon, Conte signed. When Blumensteel brought the petition around, Mary lannacone re- fused to sign it. Blumensteel presently returned accompanied by Sam Kahn, who talked to Iannacone. Iannacone told him she did not wish to join a company union. Kahn said this would merely indicate who wanted an inside union. Iannacone, being afraid that she would be discharged if she did not sign the petition, signed and left the petition with Kahn. At the time of the hearing this petition had disappeared. Both the Association and the respondent denied having knowledge of its whereabouts. Sam Kahn denied that he urged anyone to sign the petition. He further denied knowledge that such a petition had been circulated in his department. Julius Kahn testified that no employee could go around the plant with a paper unless he had the permission of the -foreman. We are persuaded by the testimony of Prina, Conte, and Iannacone. When Marie D'Anna went in to ask Yaeger about the possibility of avoiding appearance at the hearing in response to a subpena, Mary Conte asked D'Anna to inquire for her also.. At the hearing she was very nervous and tried to avoid testifying by claiming a lapse of memory! The unwilling admissions of this witness are convincing testimony. On June 25 David Kahn, president of the respondent, Julius Kahn, treasurer, and Sam Kahn went through the plant and made speeches in each department. Several employees testified that David Kahn told the employees that he was a very old man, that he could well afford to retire, and that if he had too much trouble from "outsiders" it would be better for him to go out of business. David Kahn, him- self, testified that he told the employees that if he had. too much trouble through outsiders who did not know his business it would be better for him to go out of business. At the hearing, Julius Kahn admitted that David Kahn said he was an old man, well taken care of, and did not need to continue business. Several employees testi- fied that David Kahn also said he would move to the South where labor was cheaper if the employees were planning to ask for higher wages and shorter hours. David Kahn testified that he merely re- ferred to the low wages and competition in the South to show that the respondent was not in a position to pay higher wages or to decrease the hours worked. 2 The Trial Examiner questioned Conte about her evident nervousness. DAVID KAHN, INCORPORATED 305 Julius Kahn testified that he advised the employees that they were free, white, and twenty-one, that they did not live in Russia, and that under the Wagner Act they had the right to join any labor -organization. Several witnesses testified that he said it would be better if they had an inside union which knew the industry and the employees, that the C. I. O. only wanted their money, that it knew nothing of their industry, and that if they had an inside union they -would know where their clues went. Julius Kahn denied having made these statements, but he testified that he would not like to have a union in the plant today, tomorrow, or any time, and that there was no doubt in his mind that workers inside the plant could repre- sent themselves better than those outside the plant. We find that Julius Kahn made the statements attributed to him above. Sam Kahn told the employees that he did not want outsiders telling them how to run the business. He also reminded the employees of the athletic teams and other advantages which the respondent had given the employees. Some employees testified that at the conclusion of the speeches one of the Kahns announced that there would be a meet- ing of the employees in the recreational hall. One of the employees testified that it was Julius Kahn. Julius Kahn denied having made this announcement. We find that such announcement was made by one of the Kahns. The employees immediately convened in the rec- reational hall. Harry Berg, an employee who had joined the C. I. 0., made a talk in favor of an inside union at this meeting. He said that • the petition which had circulated through the plant showed that the employees wanted an inside union. Mary Conte, whom Sam Kahn had induced to sign the petition by asserting that its only purpose was to call a meeting of the employees, replied that if the petition proposed to show a preference for an inside union, the employees had been induced to sign by misrepresentation. Another girl arose and supported her charge. Sam La Magra, one of the employees who had joined the C. I. 0., then arose to talk in favor of the C. I. 0., but by this time the assemblage was in an uproar, and he abandoned his effort to speak. This meeting was attended by foreladies and foremen, including Sam Kahn. On the following day, June 26, Sam Kahn told Mary Conte that she should not have made the statement concerning the petition which she made at the meeting of the employees, because it was better that the employees have their own union. He warned her that he had authority to discharge her. Another meeting was held in the recre- ational hall that evening. There was considerable argument for and against an inside union, and for and against the C. I. O. However, no action was taken at this meeting. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The effect of the employers' speeches on the employees was marked. Williams, a foreman in the plant, who was formerly in favor of the C. I. 0., advised the employees to get a lawyer and form a union of their own. Bella Colombo talked to Martin Anton and Frank Riccardi, all of whom had been active in the social and ath- letic club, David Kahn Employees' Association, and suggested that they start an organization. She testified that her reason for starting the organization was that she feared the business would close down if the C. I. O. should obtain a majority status in the plant. Anna Mae Burciar, who was also active in the formation of the Association, testified that the employees were satisfied, and that none had wanted to form a union until the C. I. O. began its activity. A straw vote was held outside the plant to determine whether the employees desired the C. I. 0., an inside union, or neither. The vote indicated a preference for an inside union. Those employees in each depart- ment who favored an inside union elected delegates, 14 in number, who undertook to form the organization. Colombo knew Wilbur L. Ross, an attorney. The delegates asked his advice in organizing the Association, and promised to pay him for his services after they had attained a majority status. The delegates met in Ross' office on June 28 and on July 2 and 6. A name was selected, a constitution and bylaws drafted, and membership and authorization cards were purchased. Cards were handed to the employees as they left the plant for lunch. Within an hour after they were given out, 180 cards were returned signed. Several employees testified, and we find, that members were also solicited on company time and property. On July 8 a notice announcing that the "Company Union" had changed its meeting place for that evening from Mancini's Hall to the Downtown Club, and urging all to attend since nomination and election of officers was to take place, was circulated through the plant during working hours, and thereafter it was posted on a time clock in one of the departments. Officers were elected at the meeting which had been thus announced. It is highly significant to note the contrasting responses of the respondent to invitations by the Association and the C. I. O. to meet with them for the purposes of collective bargaining. Prior to June 28 Barkan, an official of the Textile Workers Organizing Committee, had two telephone conversations with Yaeger in which he attempted to institute bargaining negotiations with the respondent. Yaeger refused to permit Barkan to come to his office, and also refused to go to Barkan's office. He finally agreed to meet Barkan in a tavern and have lunch with him. Yaeger, accompanied by the respondent's attorney, Samuel Spingarn, met Barkan on June 28. Barkan told Yaeger that the C. I. O. had a majority status in the plant. Yaeger inquired as to the number of members claimed by the C. I. O. DAVID KAHN, INCORPORATED 307 Barkan refused to divulge this information until such time as the respondent was ready to negotiate formally with the C. I. O. In explanation of his refusal, Barkan said that the respondent was agitating for a company union, and it was not good strategy to reveal the strength of his hand. On June 30 Barkan wrote a letter to the respondent in which he stated that the C. I. O. had a majority status in the plant and that it desired to meet with representatives of the respondent for the purposes of collective bargaining.3 On July 3 and on several dates thereafter, up to July 8, Barkan telephoned Yaeger but he was not available. On July 8 Barkan received .Yaeger's letter in which he stated that he was leaving for Chicago on that day and that he would contact Barkan on his return. Yaeger did not leave for Chicago until about July 15. He testified that he put off the trip for at least 2 days in order to meet with the delegates of the Association. On July 12 Yaeger, David Kahn, Julius Kahn, and Spingarn met with the delegates of the Association and with the Association's at- torney, Ross, at Ross' office. The Association claimed a majority status and had its membership cards present. The respondent agreed to recognize the Association for the purposes of collective bargaining, and they proceeded to discuss terms. No: agreement was reached at this meeting. The respondent offered to give the terms further thought and to hold another conference with the delegates. On July 20, 1937, the respondent appeared before an agent of the Board in New York City and as a result of a discussion, there, discontinued bargaining negotiations with the Association. It is clear that the respondent instigated the circulation in the plant of a petition designed to garner support for an inside union. Sam Kahn openly urged the, employees to sign it and threatened with discharge those who refused. Acting in concert therewith, David Kahn, Julius Kahn, and Sam Kahn in speeches to the em- ployees openly expressed their preference for an inside union and their hostility toward an outside union, threatening to close down the plant if an outside union should organize the employees. The employees were then directed by one of the Kahns to adjourn to the recreational hall, where, influenced.by the presence of foremen and foreladies, certain of them expressed a preference for an inside union. Thereafter the respondent gave further evidence of its hos- tility to the C. I. O. and its accompanying affection for the Associa- tion by the markedly contrasting treatment of their respective efforts to bargain collectively, set forth above. We find that the respond- 3 As is shown below, the C. I. O. did not have a majority status in the plant . However Yaeger was not aware of this, so it could not have been the reason for Yaeger 's system- atic avoidance of the C. I. O. representative. 308 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD ent has dominated and interfered with the formation and administra- tion of the. Association, and has contributed support thereto. The respondent discharged one employee and threatened others; with discharge for joining the C. I. O. and for opposing the ' forma tion of the Association. We find that the respondent, by these acts. and by the acts set forth in the paragraph above, has interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization, to form, join, or assist labor organiza-, tions, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection as guaran- teed under Section 7 of the Act. B. The alleged refusal to bargain collectively 1. The appropriate unit During the hearing the parties stipulated that the:: unit appro- priate for the purposes of collective- bargainingshould consist of all production and maintenance employees, and stock, receiving, and shipping clerks who are not principally engaged in clerical work, excluding foremen, assistant foremen or subforemen, other super- visory employees, watchmen, engineers (if any), the truck driver, home workers, clerical workers, and stock, receiving, and shipping clerks who are principally engaged in clerical duties. We see no reason to alter the agreed unit. We find that the production and maintenance employees, and stock, receiving, and shipping clerks who are not principally' engaged in clerical work, excluding, foremen, assistant or subforemen, other supervisory employees, watchmen, engineers (if any), the truck driver, home workers, clerical workers, and stock, receiving, and shipping clerks who are principally engaged in clerical duties, con- stitute a unit appropriate for the purposes of collective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Alleged representation by the C. I. O. of the majority in the appropriate unit The complaint alleged that on or about June 28 and 30, 1937, and several times thereafter, the C. I. O. requested the respondent to bargain collectively with 'it,' and that the respondent refused to bargain.. The respondent, in its answer, denied the allegation. During the hearing the parties stipulated that a Field Examiner of the Board should check the membership cards of the Association DAVID KAHN, INCORPORATED 309 and the C. I. 0. against the respondent's pay roll for the week ending July 3, 1937, and determine whether the C. I. 0. had a majority status at that time, and that the finding of the Field Examiner should be conclusive. The Field Examiner reported on August 2, 1938, that he had checked the signatures on the cards submitted by the C. I. 0. and the Association against original employees' signatures provided by the respondent, and that all were found to be authentic. He reported that he then checked the membership cards against the respondent's pay roll for the week ending July 3, 1937, and found that the C. I. 0. had 152 members who were employees of the respondent at that time, and that the Association had 231 members employed by the respond- ent •in this period. There were then approximately 350 employees in the appropriate unit. The evidence of membership introduced by the C. I. 0. is not sufficient to show that it had been designated as representative for purposes of collective bargaining by a majority of the employees in the appropriate unit. Accordingly, we find that the respondent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act by refusing to bargain collectively with the C. I. 0. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes. burdening and.obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent dominated and interfered with the formation and administration of the Association and contributed support thereto. The respondent has prevented the exercise by its employees of their right to self-organization and collective bargain- ing by such unfair labor practices. In order to free the employees from the respondent's domination and interference, and its attendant effects, to restore to them the rights guaranteed by Section 7 of the Act, and otherwise to effectuate the policies of the Act, we shall order the respondent to withdraw all recognition from the Association as 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the respondent's employees for the purposes of col- lective, bargaining, and to disestablish it as such representative 4 VI. THE QUESTION CONCERNING REPRESENTATION On July 17, 1937, the respondent was requested to appear before an agent of the Board on July 20, in New York City. It complied with the request, and as a result of the proceedings there, refused to meet either the Association or the C. I. O. until such time as the Board should decide which union has a majority status in the plant. On August 3, 1937, the C. I. 0., and on August 5, 1937, the Associa- tion, filed their petitions in which each alleged that it had been designated by a majority of the employees within the appropriate unit as their representative for the purposes of collective bargaining. We find that a question has arisen concerning the representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION ON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent set forth in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE DETERMINATION OF REPRESENTATIVES As we have previously stated, subject to a stipulation by the parties, a Field Examiner of the Board checked the membership cards of the C. I. O. and the Association, against the respondent's pay roll and found that the C. I. O. did not have a majority status among the employees in the appropriate unit. The C. I. O. had membership cards for 152 names on the pay roll for the week of July 3, 1937. There are approximately 400 names on the pay roll, and at least 350 of these are in the unit agreed upon as appropriate. The record affords insufficient proof that the C. I. O. has been designated as collective bargaining agent by a majority of the employees in the appropriate unit. We find that the question which has arisen concerning repre- sentation of employees of the respondent can best be resolved by holding an election by secret ballot. The name of the company- dominated Association will not be on the ballot. P 4 See Consolidated Edison Co., Inc., et al. v. National Labor Relations Board, 59 Sup. Ct. 206 ( 1938 ) ; National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S . 261 (1938). DAVID KAHN, INCORPORATED 311 We shall not at this time fix a date for holding the election, but will delay it until such time as we are satisfied that the effects of the respondent's unfair labor practices have been dissipated and a free choice of representatives is possible. The pay-roll date to be used in ascertaining the eligibility of employees in the appropriate unit to vote in the election will be determined at the time we direct such election. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Committee for Industrial Organization and Mechanical Pencil and Pen Workers of David Kahn, Inc., Association, are labor organi- zations within the meaning of Section 2 (5) of the Act. 2. The production and maintenance employees, and stock, receiv- ing, and shipping clerks who are not principally engaged in clerical work, excluding foremen, assistant or subforemen, other supervisory employees, watchmen, engineers (if any), the truck driver, home workers, clerical workers, and stock, receiving, and shipping clerks who are principally engaged in clerical duties, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. The respondent, by dominating and interfering with the forma- tion and administration of Mechanical Pencil and Pen Workers'of David Kahn, Inc., Association, and contributing support thereto, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 4. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the right to self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own choosing , and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid and protection, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6), and (7) of the Act. 6. The respondent. has not engaged in and is not engaging in unfair labor practices within the meaning of Section 8 (5) of. the Act. 7. A question affecting commerce has arisen concerning the repre- sentation of the respondent's employees, within .the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. 190935=40-vol. 14-21. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National-Labor Relations Board hereby orders that the respondent,-David Kahn, Inc., and its officers, agents, successors, and assigns shall: 1. Cease and.desist from : (a) In any manner dominating or interfering with the administra- tion of Mechanical Pencil and Pen Workers of David Kahn, Inc., Association, or with the formation or administration of any other labor organization of its employees, and from contributing support to said Association or to any other labor organization of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to 'form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:. (a) Withdraw all recognition from Mechanical Pencil and Pen Workers of David Kahn, Inc., Association,, as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Mechanical Pencil and Pen Workers of David Kahn, Inc., Association, as such representative; (b) Immediately post notices in conspicuous places throughout its plant at North Bergen, New Jersey, and maintain such notices for a period of sixty (60) consecutive days from the date of posting, stat- ing that the respondent will cease and desist in the manner set forth in paragraphs.1 (a) and (b), and that it will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. AND IT' IS FURTHER ORDERED that the petition for investigation and certification of representatives filed by Mechanical Pencil and Pen Workers of David Kahn, Inc., Association, be, -and it hereby is, dismissed. DAVID KAHN, INCORPORATED 313 DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with David Kahn, Inc., North Bergen, New Jersey, an election by secret ballot shall be conducted at such time as the Board may hereafter direct, under the direction and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all the respondent's production and maintenance employees, and stock, receiv- ing, and shipping clerks who are not principally engaged in clerical work, employed at its North Bergen, New Jersey, plant, who were employed by the respondent within a period to be determined by the Board in the future, but excluding foremen, assistant or subforemen, other supervisory employees, watchmen, engineers (if any), the truck driver, home workers, clerical workers, and stock, receiving, and ship- ping clerks who are principally engaged in clerical duties, to determine whether or not they desire to be represented for the pur- poses of collective bargaining by the Committee for Industrial Organization. MR. WILLIAM M. LEIsERsoN took no part in the consideration of the above Decision, Order, and Direction of Election.