George P. Pilling & Son Co.

In the Matter of GEORGE P. PILLING & SON Co. and DENTAL, SURGICAL & ALLIED WORKERS LOCAL' INDUSTRIAL UNION No. 119, AFFILIATED WITH THE C. I. O. Case No. C-1264.-Decided. October. 0'7,1939 Surgical Instruments Manufacturing Industry-Interference, Restraint, and Coercion: threats by employer to close plant or curtail activities by buying in- struments in Germany-Unit Appropriate for Collective Bargaining: all hourly rate and piece-rate employees, excluding superintendents, clerical employees, and sales people-Representatives: proof of choice : receipt by Union of majority in consent election prior to commencement of negotiations for collective bargain- ing; subsequent loss of majority held caused by employer's refusal to bargain- Collective Bargaining: employer's conferences with union representaLives with- out intent to bargain held not collective bargaining; decrease in working hours without attendant decrease in wages by unilateral` action during" negotiations ; refusal to negotiate until union had organized respondent's competitors; re- spondent ordered; upon request to bargain with Union. Mr. Joseph F. Castiello, for the Board. Mr. John Arthur Brown and Mr. D. Alexander Wieland, of Phila- delphia, Pa., for the respondent. Miss Marcia Hertzinark, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Dental, Surgical & Allied Workers Local Industrial Union No. 119, affiliated with the C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint dated February 2, 1939, against George P. Pilling & Son Co., Philadelphia, Pennsylvania, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce, within the.meaning of.Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and notice of hearing were duly served upon the respondent and upon the Union. 16 N. L. R. B., No. 67. '650 GEORGE P. PILLING & SON COMPANY 651 The complaint alleged in substance that on July 6, 1937, the Union was designated by a majority of the respondent's employees in a consent election conducted by the Board; that since July 10, 1937, the Union has requested the respondent to bargain collectively with it as the duly designated representative of a majority of the respondent's employees, but that, although the respondent has met with the Union, it has not made a bona fide attempt to'reach an agreement; that the president of the respondent and other officers and agents made speeches and statements derogatory to the Union, posted and distributed notices threatening' loss of jobs and closing of the plant if union attempts were continued; and that on August 4, 1937, the respondent increased the pay of its employees, by shortening their hours without reducing wages, in order to destroy the effectiveness of the Union. The respondent thereafter filed its answer, dated February 9, 1938, denying that the Union had at all times since July 6, 1937, repre- sented a majority of the respondent's employees, and stating that on May 26, 1938, a petition was signed by 80 of the 99 employees who voted in the consent election, in which the signers withdrew their designation of the Union as their representative. The answer further denied the refusal to bargain and the statements alleged to have been made by its officers and agents. Pursuant to notice, a hearing was held at Philadelphia, Pennsyl- vania, on February 23 and 24, 1939, before Herbert Wenzel, the Trial Examiner duly designated-by the Board. The Board and the re- spondent were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the hearing the Trial Examiner granted a motion to conform the complaint to the proof in regard to formal matters. The Trial Examiner made several other rulings on' motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudical errors were committed. The rulings are hereby affirmed. The respondent thereafter filed a brief with the Trial Examiner. Subsequently the Trial Examiner filed an Intermediate Report, 'dated April 24, 1939, copies of which were served on the respondent and the Union, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices and, upon request, bargain with the Union. Thereafter, the respondent filed exceptions to the Intermediate Report of the Trial Examiner. There was no request for oral 'argu- 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment before the Board or for permission to file briefs. The Board has considered the exceptions to the Intermediate Report, and except in so far as they are consistent 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 George P. Pilling & Son Co. was incorporated in Pennsylvania in 1906, and is engaged in the manufacture of surgical instruments. The raw materials used by the respondent are glass, rubber, wood, chem- icals, and leather. Their value in 1938 was approximately $75,000, and about 40 per cent of such materials were purchased outside the State of Pennsylvania. . The gross volume of the respondent's business in 1938 was approximately $300,000. About 60 to 65 per cent of its finished products are sold and shipped outside Pennsylvania. The respondent employs about 100 persons. H. THE ORGANIZATION INVOLVED Dental, Surgical & Allied Workers Local Industrial Union No. 119 is a labor organization affiliated with the Congress of Industrial Organizations," admitting to membership employees of dental and surgical instrument manufacturers in Philadelphia and vicinity. III. THE UNFAIR LABOR PRACTICES A. Background; interference, restraint, and coercion Organizational activities by the Union began in May 1937 with a meeting attended by employees of the respondent and other manu- facturers. A shop committee selected from among the respondent's employees included Joseph Lerman, John Smith, a "row boss," Sam Cherry, and Dan White. Lerman, who was the most active in ob- taining union members, testified at the hearing that he had difficulty enrolling the older employees because of their expressed fear that in the event that they joined the Union and the plant was not fully or- ganized, they would lose their jobs. Early in June, Lerman called a meeting of the older men, to be held on an empty floor of .the plant during the noon hour, and at this meeting told them to decide whether they were for or against the Union. Before any expression could be obtained, the whistle blew and the men went back to work. All the 'The Trial Examiner granted a motion to correct the designation of the organization on exhibits filed in the case. GEORGE P. PILLING & SON COMPANY 653 row bosses, each in charge of a section making a certain type of instru- ment, were at the meeting, but Smith was the only one of them who was active in arranging the meeting. That same afternoon a notice was posted in the plant calling for a meeting of all employees after working hours on the fifth floor of the plant at which George Pilling, president of the respondent, would speak. The notice stated that any grievances existing should be pre- sented at that time. Peters, then superintendent of the plant,2 spoke first at the meeting and told the men that Pilling had been ill and that they "should go easy." Lerman testified without contradiction that Pilling then informed the employees that he was not going to have any man run his' business for him and that, if the Union were organized, he would "close the plant down or severely curtail the ac- tivities of the plant by laying the men off and buying his instruments in Germany." Lerman further testified : ". .. to substantiate that 'statement there, he had a big catalogue of German goods on the table, which he opened up and he showed to the men all the types of Ger- man instruments that were being manufactured, and that he could get." We find that Pilling made these statements. Pilling then singled out certain of the older men for special attention. One of these was John Bennet, to whom Pilling pointed out that "it would be pretty hard for him to get a job if he lost his job." Pilling con- cluded by saying that he was always ready to listen to grievances and urged the men to come to his office or make their complaints at that time. By pre-arrangement, none of the employees took advantage of the offer. After the meeting Lerman heard Peters tell Pilling, "it was a fizzle." Harper, foreman of the tool room, thereafter attempted to convince Lerman that there was no need for a labor organization in the plant. In June, when the Union had a majority of the employees as members, J. Leon Cort, business agent, was instructed to meet with the respondent and attempt to negotiate a contract in respect to wages, hours, and working conditions. On June 18 Cort wrote to the respondent requesting a conference on the following Monday and stating, "We will phone you at 10 a. m. on Monday to confirm this arrangement." When Cort telephoned Pilling on June 21, he was told that Pilling would have to take the matter up with his board of directors and that nothing could be done until after Wednes- day. Cort replied that Pilling apparently did not seem willing to set any date to start negotiations and that any responsibility in this connection would be Pilling's. He urged that an appointment be made for that day or the next, but Pilling said that could not be done and ended the conversation. 2 Now deceased. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A few minutes after 12 o'clock noon on the same day, Smith; called Cort on the telephone and was informed as to Pilling's answer. Twenty minutes later Lerman called Cort, and told him that the men had not been satisfied with the answer from Pilling and that they were on strike. Cort came to the plant, found that about 63 men were out, and proceeded to organize a picket line. Smith attempted to introduce Cort to Pilling but when the latter found out that Cort was a union representative --lie, refused.. to, shake hands. Lerman testified that Superintendent Peters came out of a store on the corner and, pointing to Lerman, said, "He is the agitator; he is the cause of it all." On the afternoon of June 21, Cort wrote a letter to the respondent to which was attached a list of the items which the Union desired to have incorporated in a contract. The items included provisions for a signed. agreement; recognition of the Union as sole bargaining agent; a closed shop; the check-off system for collecting dues; a 40-hour week and time and a half for overtime; equal division of work during slack periods; seniority,; vacations; adjustment : of.dis- putes by conference; a limited apprenticeship system; and minimum wage scale. On June 22 Pilling wrote Cort, offering to meet at 2: 30 on Wednesday, June 23. The conference was held at the appointed time, with Brown and Wieland, attorneys for the respond- ent, Pilling, Smith, Cherry, and Cort in attendance. Brown 'told Cort that he saw no reason for not negotiating if the Union could show proof of its majority. Pilling, however, threatened to close the shop and import goods from Germany, and showed Cort the catalogue of German goods. Cort suggested the holding of a consent election under supervision of the Board. Another conference was held on June 25, at which Pilling signed a, statement that he would deal with the representatives designated by a majority of his em- ployees and that any agreement reached would be put in writing. On Friday, June 25, Cort told the strikers that the respondent had agreed to an election and they voted to return to work on the follow- ing Monday. On June 29 Wieland signed for the respondent an agreement for a consent election, which was held on July 6. Ninety- nine employees voted ; 51 ballots were cast for the Union and 47 against. We (find that by the efforts of, Pilling and Harper to impede the organizational activities of the employees, and particularly by Pill- ing's open threat to terminate or sharply curtail the business should the employees join the Union, the respondent has interfered with, restrained, and coerced its employees in their exercise of the rights guaranteed by Section 7 of the Act. GEORGE P. PILLING & SON COMPANY 655, B. The refusal to bargain 1. The appropriate unit The agreement for a consent election provided that all hourly rate and piece-rate employees of the respondent should be eligible to vote, with the exception of superintendents, clerical employees, and sales people. There is evidence that certain employees who are paid on an hourly basis occupy supervisory positions, are in charge of other employees in their departments, distribute work to the men in their sections, and are responsible for the work. However, these em- ployees do not have the right to hire or discharge, they are eligible to join the Union, and both the Union and the respondent considered them eligible to vote in the consent election. We shall include them in the appropriate unit. We find that the hourly rate and piece-rate employees of the re- spondent, excluding superintendents, clerical employees, and sales people, constitute 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. Representation by the Union. of the'majority in the appropriate unit As has been stated above, the consent election of July 6, 1937, resulted in a vote of 51 for the Union and 47 against it. The re- spondent did not question the Union's representation of a majority at any time thereafter until a petition, signed on May 26, 1938, and discussed below, was presented to the respondent. Since we are finding below that the petition was the result of the respondent's unfair labor practices, it cannot affect the majority status of the Union. We find that on July 6, 1937, and at all times thereafter, the Union was the duly designated representative of a majority of the employees in the appropriate unit, and, pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The negotiations and the refusal to bargain. On July 9, 1937, Cort called Brown on the telephone and arranged for a conference to be held on July 13. Brown, Cort, Peters, and the shop committee met on the 13th. Pilling did not attend this meeting and Brown informed Cort that neither he nor Peters had authority 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bind the company. However, it was decided to discuss the clauses of the proposal submitted by Cort. The first two paragraphs were not discussed because of the previous agreement to recognize the Union and to enter into negotiations. Brown informed Cort that Pilling would not agree to a closed shop and Cort suggested a preferential- shop clause such as was then being incorporated in contracts with dental-equipment shops in Philadelphia. Brown testified that he told Cort at this time that the respondent was not in a position to agree to a preferential clause of the type suggested. Cort, however, stated at the hearing that Brown agreed tentatively to the preferential-shop provision. Brown also told Cort that the respondent would not agree to the check-off system of collecting dues and Cort suggested that the shop chairman collect dues on company premises but not during work- ing hours. Brown and Peters tentatively agreed to this method. There was also a tentative agreement on the request for a 40-hour week in 5 days, with time and one-half for overtime. However, there was no discussion as to the provision for double pay for holiday work. At Brown's suggestion, "as far as possible" was inserted in the pro= vision for equal division of work during slack times. It was agreed that seniority should be based on departments rather than upon the basis of the entire plant; that vacations should be granted after 3 years' service rather than after 1 year; that disputes should be ad- justed by conference; and that a separate committee should be set up to work out details as to a limited apprenticeship arrangement. There was no discussion as to wages. Three days later, on July 16, another conference was held at which Pilling was present. The provisions of the list submitted by Cort were explained to Pilling and, after each was read, he was asked whether he would agree. His answer in each instance was "No" and he neither explained his position nor offered any counter- proposal. Some time prior to this meeting Lerman had been dis- charged 3 and two men had been put on part-time work. There was some discussion of the matter, following which Cort and the union committee went into another room, decided they must insist upon a preferential shop at least, and so informed Pilling and Brown. Pill- ing refused to agree. During this conference Brown told Cort that the respondent had lost approximately $72,000 in the past 6 years and could not afford to agree to some of the requests made by the Union. On the afternoon of July 16, there appeared in the respondent's plant a notice which read as follows : 8 The Union subsequently filed a charge of discriminatory discharge of Lerman, but withdrew it when an agreement as to back pay was reached by the parties . Lerman had then obtained another position. GEORGE P. PILLING S; SON COMPANY 657 To Our Employees: At a conference today with representatives of the C. I. 0., the representatives of the Union demanded that the Pilling Company should agree that any new men taken on should either be members of the Union or the Company should agree that such employees should become members of the Union. This demand means that the Company could not take on any new men unless they were members of the.Union or became members of the Union. We have advised the C. I. O. that we will not agree to these terms, which we consider unfair to our non-Union members. We have been advised that there is nothing in the law which justifies a demand of this kind. We are not willing to become a party to any agreement which will compel any employees to become a member of the Union. We have no objection to our employees joining any Union or refraining from joining any Union they please. We intend to treat all our employees alike, whether Union or non-Union. We will do our best to raise wages whenever possible and we are endeavoring to work out a schedule of shorter hours without reduction of wages. We intend to carry on business and operate the plant as long as we are able to do so. If we are obliged to close the factory it will be because of conditions over which we have no control.5 On July 26 another notice appeared in the plant , addressed to the employees , and stating, in part: In the last paragraph of our letter to you Friday , the 16th we told you . we are endeavoring to work out a schedule of shorter hours by advancing the rate per hour so that you will receive the same, amount for forty hours as you had been receiv- ing for forty-five hours. This plan has been nearly completed and we hope to put it into effect the week beginning August 4th , unless prevented by conditions over which we have no control.5 Then followed a description of the plan and a statement that its operation would be equivalent to an increase in wages of 121/2 per cent, which was in addition to an advance 7 months before and another advance 9 weeks previously. This plan and the statement announcing it had not been worked out with the Union, but represented strictly unilateral action on the part of the respondent. The respondent maintains that the above notices were posted after an impasse had been reached in negotiations between it and the i 5Italics supplied. 658 DECISIONS OF N A'.CIONAL LABOR RELATIONS BOARD Union on the question of a closed or preferential shop. However, from its future course of conduct and from that of the Union, it is plain that neither considered that an impasse had been reached at that time. The respondent denies that the notices contained a threat to close the plant and contends that the statements were meant to infer only that "if internal conflict, strikes, competition which could not be -met, or other such matters occurred, the company could not continue." Since no strike was then imminent, and since there is no evidence in the record of any "internal conflict" at that time, the only, conclusion logically to be drawn from the notices is that they conveyed a threat that the plant would close in the event that union activity continued. The respondent apparently was not in financial difficulties nor was it having trouble meeting competition, as evidenced by its action in granting three wage increases during the 7 preceding months. Certainly there was noth- ing in the requests made by the Union which would inspire fear for the future in these respects since the respondent reduced the working hours to 40, the same figure sought by the Union, of its own accord and since there had been no discussion at all of wages. As to the decrease in working hours announced in the notice of July 26, the respondent states, in its brief filed with the Trial Examiner, "In short, the complaint seems to be that respondent should either have not introduced the shorter work week, which is a perfectly ridiculous complaint to entertain from a labor stand- point, or else have done it only after calling the Union in to agree to it in order that the Union might have credit for forcing it, which is equally unreasonable." We have held that when an employer unilaterally grants conces- sions to his employees, at a time when their designated union is attempting to bargain concerning the same subject matter, such action constitutes a violation of the employer's duty to bargain with the accredited unions That principle is plainly applicable here. The Union had requested that the respondent agree to a 40-hour week and Pilling had, at a conference on July 16, refused to grant the request. It is clear that reducing the working week to 40 hours, under such circumstances, would have the effect of indicating to employees that they could obtain better conditions directly from their- employer without the aid of the Union, and it is obvious that this was precisely the respondent's purpose. 6 Matter of Chicago Apparatus Company and Federation of Architects, Engineers, Chemists and Teehnicians, Local 107, 12 N. L. R. B. 1002; Matter of Whittier Mills Company and Silver Lake Company and Textile Workers Organizing Company, 15 N. L. R. B. 457. GEORGE P. PILLING & SON COMPANY 659 We find that by posting the notices of July 16 and July 26, and by decreasing the working hours of employees from 45 to 40 at a time when the Union was attempting to secure that very concession from the respondent, the respondent indicated an intention not to bargain with the Union but rather to deal with its employees directly, and thereby engaged in a refusal to bargain, in violation of Section 8 (5) of the Act. The statements in the. notice of July 16 were obviously calculated to mislead the respondent's employees as to the effect of the Union's demands for a preferential shop and as to the Union's right to ask for such an agreement. The July 26th notice calls attention to the efforts of the respondent to increase wages, attempts to demonstrate the respondent's benevolence, and contains the threat that "conditions over which we have no control" may deprive employees of the contemplated increase in wages. A plan more calculated to discourage faith in the Union could hardly have been devised. During the next 4 months Cort telephoned Brown several times in an effort to secure an appointment for conferences but each time was told that Brown had been unable to see Pilling, or that Pilling did not understand or agree to the terms proposed by the Union. On December 8, Brown and Cort met, but made no progress in discuss- ing negotiations. On March 25, 1938, Cort wrote to Brown, urging that they get together and mentioning the fact that the employees were asking, for results.. On April 1, Cort, Brown, and Pilling met, and Pilling informed Cort that if he would organize the remainder of the industry, Pilling would then do business with him. Cort told Pilling that his was the key shop and that his refusal to comply with the signed election agreement was making unionization of other shops more difficult. Brown testified that he told Cort at this con- ference that the respondent would deal with the Union and that he though't'they'would have-no,trouble on minor matters, but that the preferential clause and check-off were. the stumbling blocks. He ad- mitted, however, that Cort asked him to suggest an alternative to the preferential-shop clause and that he did not do so. Cort testified that very little discussion was had as to any of the proposals. On April. 4 Cort wrote to Brown, urging that the negotiations be cleared up quickly and pleasantly, and Brown replied that he would have a conference with Pilling and write Cort of the results. On April 13 Brown requested more information on the position of the Union., After conferring with one of the Board's Field Exam- iners, Cort sent Brown 'a rough draft of the agreement desired by the Union. On April 30 Cort informed Brown by letter that he had been attempting to arrange a conference without success, that Brown apparently was stalling, and that he (Cort) was contemplating filing 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges of refusal to bargain against the respondent. Brown replied by letter of May 2 in which, among other things, he stated, "It is not an easy situation to handle, as you know, and I have been doing everything I can to bring the matter to some satisfactory conclusion." At a conference on May 9 there was further discussion of the preferential clause and of paragraph 2 of the proposed contract. Paragraph 2 provided that employees who were then members of the Union, and those who should thereafter become members, should remain in good standing in the Union and contained an agreement by the employer that it would not retain any such employee after notice from the Union that he was not a member in good standing.? Brown informed Cort that Pilling would not agree to either clause. Three days later, on May 12, Cort attempted to discuss with Pilling paragraph 2, and Pilling refused to talk about the matter unless Cort would tell him the names of the Union's shop committee, which information Cort would not disclose. As to paragraph 3, Pilling stated that he did not see why he needed to prefer members of 'the Union, if he could see a better man outside. He refused to guarantee to maintain the existing wage scale and said he was not prepared to discuss the 40-hour week provision, although the respondent's plant was then, and apparently had been since August 4, 1937, operating on that basis. Cort testified that Pilling then stated as to each of the remaining items that he was not prepared too discuss them. Brown, however, testified at the hearing, that Pilling.3.in- dicated his agreement on certain clauses and stated that he could not approve others. Both Brown and Cort -prepared transcripts of their notes taken at the various conferences, and these were submitted in evidence. Brown's notes contain no reference to a meeting on May 12, while Cort's notes as to the conference on that. date contain, among other things, the ' following statement : "Under some diffi- culties, the agreement draft was discussed from clause two to -clause six. In each case the answer was in some form of No. Mr. Pilling refused even to discuss #2 unless I informed him of the names of the Shop Committee, I refused." Under the circumstances, we give more credence to the testimony of Cort, refreshed by his notes, than to that of Brown, given without notes on this particular conference, and after almost a year had passed. The actions of Pilling at the conferences, especially those of April 1 and May 12, clearly indicate his intention not to bargain with the Union. His statement to Cort that he would deal with the Union only after Cort had organized the respondent's competitors, and his action in demanding that Cort disclose the names of the 701d employees who were not members of the Union were not required to become members. GEORGE P. PILLING & SON COMPANY 661 shop-committee members before he would discuss certain clauses of the proposal, show that the respondent was not bargaining in good faith. Under the Act the respondent's duty to bargain with the Union may not be qualified by any such conditions as Pilling sought to impose. The Union is not obliged to organize competitors of a particular employer as a condition precedent to bargaining with him. Similarly, there is no warrant for refusing to bargain until the names of the shop-committee members were revealed to the respond- ent, information to which the respondent was not entitled. We find that at the conferences of April 1 and May 12, 1938, the re- spondent refused to bargain with the Union as the exclusive repre- sentative of a majority of its employees, in violation of Section 8 (5) of the Act. Another conference was held on May 19, which was begun with a discussion of the vacation provision. Pilling said he could not afford to grant vacations and that he did not intend to do so. After further attempts to discuss various items of the proposed contract which met with no success, one of the Board's Examiners, who was present at this meeting, felt it necessary to inform Pilling that merely having conferences was not necessarily negotiating in good faith. Brown said, "Well, I guess that is right," then turned to Pilling and said, "You are behaving like an old fool." Brown suggested adjourning and promised he would "have a good talk with Mr. Pilling." He stated that he felt assured that in the next conference, "We will be able to get this thing cleaned up." As Cort left the conference Wieland, Brown's associate, remarked that Cort had "infinite patience." Cort wrote Brown on May 27, threatening to file charges with the Board, stating that he could see no reason for the delay, and accusing the respondent of stalling for time. On May 31 and again ,on June 1, Brown indicated in letters to Cort that he was attempting to bring the matter to a conclusion as promptly as possible. On June 6 Brown informed Cort that Pilling had received a petition on May 26 which was signed by 80 employees and in which they indicated that they were thereby withdrawing from the Union and desired a new election. Brown asked Cort how this petition would affect the status of the Union. It appears that about the middle of May approximately 20 of the respondent's employees had held a meeting 8 and discussed the situa- tion with regard to negotiations between the respondent and the Union. It was decided to submit to, all the employees the question of what action to take. A few days later another meeting was held 6 It is not shown who arranged this meeting or those which followed. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and was attended by 70 to 80 employees. Fred Todt, who had spoken at the first meeting, took charge of this meeting. A petition of confidence in the respondent was signed. The petition also re- quested Pilling to restore employees to a full working week instead of the part-time basis on which they were then working. Todt pre- sented the petition of confidence to Pilling on the following day. On May 26 another meeting was held at which Todt stated : "Now boys, you are not getting anywhere; the Union ain't doing anything for you . . . It is not benefiting you in any way-why not pull together; I want you all to pull together, and the only thing to do is to get up this petition to see whether we can hold another election." Matsinger, an employee of the respondent, testified that the men were dissatisfied "because the Union wasn't getting them anything ... There was no contract signed. They were all basing their hopes on a contract. They said if they got a contract, then they would have something to work on . . . something they could look forward to, but without a contract they could do nothing." He testified further that he and other employees had been attending union meetings, had been given reports of the negotiations between the Union and the re- spondent, and knew that no progress was being made. It is plain that the petition was directly caused by the respondent's refusals to negotiate in good faith with the Union, and the employees' attendant weariness of waiting for results. Conferences between the parties were held at the Board's Regional Office on June 14 and again on July 21. The respondent each time took the position that the Union no longer had a majority because of the petition. On July 23 Cort wrote Brown again, saying that, fol- lowing the suggestion of the Board's Regional Director, he was re- questing another conference. Brown replied by letter of July 25 alleging that the Pilling Company had never refusedto bargain, and: discussing the effect of the petition. No further effort was made to negotiate. The respondent's position is that it has bargained in good faith and that there has been an inability to agree, primarily on the ques- tion of the preferential shop and the clause providing for discharge by the respondent of employees no longer in good standing with the Union. It also points to the petition signed by 80 employees as in- dicating that the Union no longer has a majority. The Union urges that the respondent has not bargained in good faith, that it has de- layecl_ over a period of a year in order. to escape the necessity of entering into a written agreement, and that, as we have found above, the petition was the result of such delay and the consequent loss of faith in the Union because of its inability to secure the promised contract. GEORGE P. PILLING & SON COPIPANY 663 We have already found that during the course of the various con- ferences the respondent engaged in conduct violative of Section 8 (5) in several respects-by granting concessions directly to the employees in a move to discredit the Union's efforts to bargain concerning the same subject matter, by Pilling's refusal to negotiate on April 1, until the Union had organized his competitors, and by his similar refusal on May 12, unless the names of the union shop committee were dis- closed to him. In addition to these particular instances, it is relevant to consider the course of dealing as a ' whole. The negotiations between the respondent and the Union present a picture of conferring without bargaining. They covered a period of about a year during which time the Union made all the advances and was met with constant delay and procrastination. Although the respondent and its attorneys met with representatives of the Union, discussions on each occasion terminated with no visible results. Brown, the respondent's attorney, was evidently agreeable to a num- ber of the Union's demands and attempted to convince Pilling that he should agree to them. However, Brown had no authority to bind the respondent, and his tentative agreement to various proposals was empty of any benefit to the Union. His statements to Cort that the respondent would agree on minor matters but that the pref- erential shop- and the requirement to discharge employees not in good standing with the Union were the "stumbling blocks," cannot establish that a genuine impasse existed, in the face of Pilling's constant refusal to agree to anything.° Although it is true that the Union, since the filing of the petition of May 26, 1938, appears to have lost its majority status, it is clear that had it not been for the unfair labor practices of the respondent in refusing to bargain collectively with the Union, the Union would have retained its majority.- It is not for the respondent to contend that the majority would have been dissipated even had there been no unfair labor practices. We find that on July 16, 1937, and at all times thereafter, the respondent refused to bargain collectively with the Union as the representative of its employees in respect to rates of pay, -wages, hours of eniploy`meiit', and 'other conditions of employment. We further find that the respondent, by the conduct set forth above, has interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of , Cf. Globe Cotton Mills v. National Labor Relations Board, 103 F. (2d) 91 (C. C. A. 5th), in which the Court pointed out that the employer there involved should have tendered some counterproposal to toe union, since, ". . . the resistance of the union in discussion may have been only strategy and not a fixed final intention." 10 Matter of American Numbering Machine' Company and International Association of Machinists, District #15, 10 N. L. R. B. 536. 24738'3-40-vol. 16--43 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their own choosing, and to engage in concerted activities for the purposes of, collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON .COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a 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. THE REMEDY Having found that the respondent has engaged 'in unfair labor practices, we shall order it to cease 'and desist therefrom and to take such affirmative action as will remedy the effects thereof. We have found that on July' 16, 1937, and at all times thereafter, the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit. Accordingly, in order to effectuate the purposes of the Act, we shall order 'th'e respondent to cease and desist from its unfair labor prac- tices, and upon request to bargain collectively with the Union. The respondent sought to establish that by the petition of May 26, 1938, the Union lost its majority. As we have, said above, if the Union did lose its majority, that condition was caused by the respond- ent's unfair labor practices. We cannot permit the respondent to evade its duty to bargain by setting up the results of its own viola- tions. of the Act. As we have stated in Hatter of Inland Steel Company: 11 The necessary delays incident to the adjudication of a dispute have postponed the Board's order until a time considerably sub- sequent to the original wrongful refusal to bargain. The refusal to bargain collectively disrupts, the morale of the men, has a deterring effect upon the organizational activity of the union and a'discouraging influence on members already gained which tends to induce them to drop from the ranks. In fact,' we have seen that forestalling the organization of its employees into the S. W. 0. C. was the primary purpose of the respondent in its refusal to enter into a signed agreement. If an order to-,bar- gain collectively cannot be deemed an appropriate remedy for "Matter of Inland Steel Company and Steel Workers Organizing Committee and Amal- gamated Association of Iron, Steel, and Tin Workers of North America , Lodge Nos. 64, 1010, and 1101,'9 N. L. R. B. 783. GEORGE P. PTLLING & SON COMPANY 665 the refusal to bargain collectively unless the S. W. 0. C.'s ma- jority is kept intact until the Board can issue a decision, the plain policy and intent of the Act will be defeated. The re- spondent would be permitted further to evade the obligation of Section 8 (5) by profiting from the discouraging effects of its already accomplished violation of that very obligation. We cannot concede the validity of such a. doctrine of futility, and we hold that to effectuate the policies of the Act, the respond- ent's refusal to bargain must be remedied by an order to bargain, based on the majority obtaining on the date of the refusal to. bargain. The above-stated principle is peculiarly applicable in this case where there exists direct and conclusive evidence that the reason for the Union's loss of majority was the employees' weariness of waiting for results from the negotiations between their employer and the Union. 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. Dental, Surgical & Allied Workers Local Industrial Union No. 119 is a labor organization within the meaning of Section 2 (5) of the Act. 2. The hourly' rate. and piece-rate employees of the 'respondent, exclusive of superintendents, clerical employees, and sales people, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Dental, Surgical & Allied Workers Local Industrial Union No. 119 was on July 6, 1937, and at all times since has been, the exclusive representative of all employees of the respondent in the above unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on July 16, 1937, and at all times thereafter, to bargain collectively with Dental, Surgical & Allied Workers Local Industrial Union No. 119, as the exclusive representative of all its employees in the . - appropriate unit, the respondent has engaged in and, is engaging in unfair- labor practices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act., 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of. Section 2 (6), and (7) of the Act. B,66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that George P. Pilling & Son Co., Philadelphia, Pennsylvania, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Dental, Surgical & Allied Workers Local Industrial Union No. 119, affiliated with the ,C. I. 0., as the exclusive representative of its hourly rate and piece- rate employees, exclusive of superintendents, clerical employees, and sales people; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, ton bargain collectively -through representatives of their own choosing, and to engage in ,concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds -will effectuate the policies of the Act : (a) Upon request, bargain collectively with the Dental, Surgical & Allied Workers Local Industrial Union No. 119, affiliated with the C. I. 0.,. as the exclusive representative of its hourly rate and piece- rate employees, exclusive of superintendents, clerical employees, and sales people, employed at its plant in Philadelphia, Pennsylvania, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Immediately post notices to its employees in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating (1) that it will cease and desist as aforesaid; and (2) that it will, upon request, bargain collectively with Dental, Surgical & Allied Workers Local Industrial Union No. 119, affiliated with the C. I. 0., as the exclusive representative of its hourly rate and piece- rate employees, exclusive of superintendents, clerical employees, and sales people; (c) Notify the Regional Director for the Fourth Region in writ- ing within ten (10) days from the date of this Order what steps it has taken to comply therewith. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.