P. Lorillard Co.

In the .Matter of P. LORILLARD COMPANY, MIDDLETOWN, OHIO an PIONEER TOBACCO WORKERS' LOCAL INDUSTRIAL UNION NO. 55 Case No. C--853.-Decided October 27,.1939 Tobacco Industry-Interference , Restraint , or Coercion : anti-union statements- and warnings that union activity might cause the plant to be moved by super- visory official-Unit Appropriate for Collective Bargaining :. production employ- ees excluding employees with authority to hire and discharge and employees in a supervisory capacity : no controversy as to-Representatives: proof of choice : testimony of union official based upon records-Collective Bargaining: com- pany's failure to be open to persuasion and refusal to make available represen- tatives authorized to bargain in Middletown, Ohio , insisting that negotiations: be carried on in New York ' City ; company ordered to bargain in Middletown,. Ohio, order-based on majority at date of refusal to bargain. Mrs. Mary Telker Miff, Mr. Philip G. Phillips, and Mr. William S. Gordon, for the Board. Mr. Louis Seelbach, of Cincinnati , Ohio, and Mr. Charles W. Mil- ner, of Louisville, Ky.; f or the respondent. Mr. Samuel M. Sponsellor, of Cincinnati, Ohio; for the Union. Miss Carol Agger, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Pioneer Tobacco Workers' Local Industrial Union No. 55, affiliated with the Commit= tee for Industrial Organization, herein called the Union, the National Labor Relations Board, herein 'called- the Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued its com- plaint dated April 11, 1938, against P. Lorillard Company, Middle- town, Ohio, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the mewling 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. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and- the Union. 16 N. L. R. B., No. 69. 684 P. -LORILLA-RD: COMPANY 685 In respect of the .unf air: labor practices, the complaint, as amended at the.hearing,•Vailegedl in substance that on June 10, 1937, the Union was, and;ever_since has been, the duly designated representative of, a majority ,of the 'respondent's employees in an appropriate. unit con= sisting• of the: production employees at the respondent's Middletown, Ohio, plant, exclusive of- supervisory. employees; that on June 10, 1937, and ever since, the respondent has. refused to bargain collec- tively with the Union as the exclusive representative of all the employees in the appropriate.unit; that -on June, 10,.1937, and. ever since, the respondent has refused.to meet with the Union at Middle- town. Ohio, for the purpose of bargaining collectively,' stating that any such meeting should be held ,only at New York. City, a place far distant from the Middletown; Ohio, plant, well knowing, that the Union could not and would not 'bargain there because, of the expense, delay, and, inconvenience,incidental thereto, and because of the inappropriateness of New York City as a place for collective bargaining; and that the respondent has since April 1937 discour- aged its employees from . becoming members of the Union, and has intimidated and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act (1) by discharging, laying off, and otherwise discriminating against members of the Union because of their. union membership, (2) bv derogatory remarks concerning the Union and all other outside. and independent labor organizations, (3) by -threatening: to move the Middletown plant if its employees continued their membership in the Union, and (4) by sundry and divers other means well,known to the respondent. . On April 18, 1938,. the respondent filed its answer to the coin- plaint. The answer,-as amended at the hearing, denied the unfair labor practices alleged in 'the complaint as amended; and stated affirmatively that the respondent had bargained collectively. with the Union; - . . . ..Pursuant to notice, a, hearing was held at Middletown, Ohio, on April 23, 1938, before James L. Fort, the.Trial Examiner duly designated by the Board. The Board and the. respondent were rep- resented by. counsel and participated in the hearing. Full oppor- tunity to be heard, to. examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. Included in the evidence introduced 'at, the hearing and made part of, the record in this case were, the transcript and, exhibits in. Case No. C-851, in.which, the respondent was charged with engaging, in sim- ilaar unfair labor 'practices, against the employees at its Louisville, Kentucky, plant 'Matter of P. Lorillard, Com pany, Louisville, Kcnt-ucky,and,Loical Union No. 201. Tobacco Workers" Union', 16'N. L. R. 'B.' 703, decided' this day. ' '686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the close of the hearing the Trial Examiner, without objection by the respondent, granted a motion by counsel for the Board to amend the complaint to conform to the evidence. The ruling is hereby affirmed. At the close of the hearing the parties were afforded an opportunity to argue orally before the Trial Examiner and to file briefs.'"The respondent filed a brief which was considered by the Trial Examiner in the preparation of his Intermediate Report and which has been considered by the Board. During the-hearing-the Trial' Examiner°rnaide:^severalh-rul ngs,,on motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 19, 1938, the Regional Director issued a notice of hearing which stated that the respondent had informally presented certain additional evidence to the Board and that it appeared to the Board that such evidence, together with any other new and relevant evi- dence, should be made a part of the record. Pursuant to the notice, a hearing was held on July 25, 1938, before the same Trial Examiner. Evidence was presented by the respondent and by the Board. On August 9, 4938; -,.,the Trial.Exam1nerr,-filed.,:an^ Intermediate Report based upon the entire record, including the hearing of July 25, 1938. Copies of the Intermediate Report were duly served upon the parties. The Trial Examiner found that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3),2 and (5) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and, affirmatively, upon request, bargain collectively with the Union as the exclusive representative of the respondent's Mid- dletown, Ohio, employees in an appropriate unit. and "to have duly accredited representatives meet with representatives of the Union at its Middletown, Ohio, plant or other convenient place in Middle- town, Ohio." In his Intermediate Report the Trial Examiner noti- fied the parties that requests for oral argument before the Board on exceptions to the Intermediate Report should be `nude within 10 days of the receipt thereof. No such requests have been made. On August 29, 1938, the respondent filed exceptions to the Inter- mediate Report. The Board has considered these exceptions and, except in so far as they are consistent with the findings, conclusions, and order below, finds that they are without merit. On October 31, 1938, Lorillard Employees Association, an or- ganization which was not in existence at the time of the first hearing, petitioned .for leave to intervene: in the..proceedings, <alleging.that 8 This is obviously a mistake of enumeration , since no unfair labor practices within the meaning of Section 8 ( 3) were alleged or proved. P. LORILLARD COMPANY 687 a question had arisen concerning the representation of the respond- ent's employees, and requesting an investigation and certification of representatives. For the reasons discussed below, we shall deny the petition. On November 10, 1938, the respondent filed a petition for a re- hearing and an election, which alleged that on September 29, 1938, the Union sent aproposed agreement to the respondent which was not received until October 3, 1938; that within an hour thereafter the respondent was informed that the employees in the Middletown plant had gone on strike in support of the proposed agreement; that during the strike an organization entitled "Lorillard Employees Association" was formed by some of the employees without the sug- gestion or aid of the respondent; that the respondent is informed and believes that more than a majority of its employees have joined this Association ; that during the strike the respondent informed the Regional Director that if an election were held and the men returned to work on the day following such an election, the respondent would promptly bargain in Middletown with the winner of such election; and that the Union nonetheless continued the strike. The petition requested that the Board permit the petition for rehearing to be filed, that a rehearing be granted, and that an election be ordered. For the reasons discussed below, we shall deny the respondent's petition. Upon the whole record in this case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT P. Lorillard Company is a corporation, organized under the laws of New Jersey in 1911, with its main office in New York City. It is engaged in the manufacture and sale of tobacco products. It operates plants in Connecticut, New Jersey, Pennsylvania, Virginia, Ohio, Kentucky, and Wisconsin. Only the plant in Middletown, Ohio, is here involved. The respondent manufactures smoking and chewing tobacco at its Middletown plant. The principal raw material used in this plant is leaf tobacco which the respondent purchases in the State of Ohio and six other States. During the year 1937, 26,491,028 pounds of leaf tobacco, valued in excess of $2,500,000 and representing over 90 per cent of the total amount of leaf tobacco used at the Middletown plant, were shipped to the Middletown plant from points outside the State of Ohio. More than 90 per cent of the other raw materials used in the manufacture of the finished products are shipped to the Middletown plant from points outside Ohio. During the same year, 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Middletown plant shipped 30,000,000 pounds of finished tobacco products, valued in excess of $4,000,000 and representing over 80 per cent of its total finished products, to points outside the State of Ohio. On June 10, 1937, the respondent employed 1,100 persons at its Middletown plant. Foremen, assistant foremen, supervisors, and office workers comprised about 10 per cent of this number. II. THE ORGANIZATION INVOLVED Pioneer Tobacco Workers' Local Industrial Union No. 55 is a labor organization affiliated with the Committee for Industrial Organiza- tion,2a admitting to membership all the respondent's production work- ers except employees with authority to hire and discharge and employees in a supervisory capacity in charge of labor. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In the spring of 1937 the Union began organizing the employees at the respondent's Middletown plant. During that spring and sum- mer a number of the respondent's employees had conversations with E. L. Harpring, the local plant manager, concerning the Union. George Whitaker, a member of the union grievance committee, testi- fied that on one occasion when the committee was conferring with Harpring in his office, Harpring told the members of the committee that if they "kept on" as they were, the plant would be driven from Middletown. According to Whitaker, Harpring also accused the com- mittee members of being communists and said that he did not see why some of them did not go back to Russia. Robert Bailey, the president of the Union, testified that Harpring came into the carpenter department where Bailey worked and asked Bailey if he thought the C. I. O. had sound backing. Bailey replied that he thought it had and Harpring then asked Bailey whether he knew "this fellow and that fellow, and mentioned several names of the officials of the C. I. 0., were communists." According to Bailey, Harpring also said that if the men had to have a union, he would have preferred not to have the C. I. O. and that the respondent could have given the men a union which would not cost them nearly as much as the C. I. O. would cost. According to Bailey, Harpring then went on to speak of strikes and violence occurring elsewhere and expressed a hope that they would not occur at Middletown because "the company would hate to see our business here killed," with perhaps only one or two millwrights working, and because Harpring himself would "hate like hell"- to lose everything he had. 11 Now the Congress of Industrial Organizations. P. LORILLARD COMPANY 689 Lee Carter, a member of the union grievance committee, testified that during a committee conference with Harpring, Harpring told Carter that the Union was a "communistic organization and that the way we was acting around there, speaking of the Committee, that we was heading to drive this plant out of Middletown, and he went on to say he had his home here and he didn't want to lose it, and thought we ought to protect our jobs too by keeping the plant in Middletown." Nathan Riddle, also a member of the grievance committee of the Union, testified that at the time when the American Legion was alleging that a certain C. I. 0. official was a communist, Harpring came up to Riddle and started to discuss the C. I. 0., characterizing it as "practically the same as the Ku Klux Klan." Riddle attempted to point out some differences between the two organizations and Harpring remarked that it was a "known fact" that the C. I. 0. official above referred to was a communist. Harpring denied that he had said that the union committee mem- bers were communists or that he suggested that they return to Russia, since none of them were Russian. Harpring could not re- member having told Riddle that the C. I. 0. was similar to the Ku Klux Klan and therefore denied making the statement. Harp- ring admitted telling Lee Carter that he liked Middletown so well that he hoped that nothing would ever happen to cause the plant to be moved and that he felt that the other employees were equally interested in keeping the business in Middletown. He denied, how- ever, that this statement was made to Carter in connection with a discussion of the closing of other plants or that there had been any implication in his remarks that the Union might in any way be responsible for the closing of the plant if it took place. Harpring also testified that he had not said the C. I. 0. was' communistic and that he had not told any of the employees that some C. I. 0. leaders were communists. Harpring also denied that he had told Bailey that the respondent could provide a cheaper union than the C. I. 0. In view of the fact that several employees testified that Harpring made substantially similar statements to them concerning the com- munistic leadership of the C. I. 0. and the danger that the Union might drive the business from Middletown, and in view of Harpring's admissions set forth above, we are satisfied that Harpring made intimidating, coercive, and derogatory statements concerning the Union and that he warned against the possibility of union activity driving the plant from Middletown, substantially as described above, for the purpose of discouraging the employees from joining and engaging in activities in behalf of the Union, and we so find. We. find that the respondent, by the intimidatory, coercive, and derogatory statements of its plant manager concerning the Union, 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. B. The refusal to bargain collectively (1) The appropriate unit The complaint alleges that a unit appropriate for the purposes of collective bargaining consists of all the production employees in the respondent's plant at Middletown, except employees with authority to hire and discharge and employees in a supervisory capacity. The Union attempted to negotiate with the respondent upon the basis of such a unit and the respondent raised no question concerning the trait. The claimed unit is a normal industrial unit and the record discloses no reason for modifying it. We find that the production workers, employed in the Middletown plant, except those with authority to hire and discharge and em- ployees in a supervisory capacity, constituted and constitute a unit appropriate for the purpose of collective bargaining, and that said unit insures to employees of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. (2) Representation by the Union of the majority in the appropriate unit At the hearing, E. P. Murphy, the financial secretary of the Union in charge of membership records, testified from his records concern- ing the membership in the Union. Membership in the Union is limited to the respondent's production employees. According to Murphy, by June 10, 1937, 637 of the respondent's production em- ployees had signed membership application cards and had paid an initiation fee. Membership cards were issued to the 637 employees. On June 10, 1937, the respondent employed 1,100 employees in its Middletown plant, of whom approximately 10 per cent were super- visory or office workers. The record does not disclose that the num- ber of employees during the following year or at the time of the hearing varied substantially from the number employed on June 10, 1937. Murphy further testified that on April 23, 1938, the date of the hearing, the union records showed a membership of 705. In addi- tion to these, 12 employees had signed applications for membership and had paid initiation fees. Murphy further stated that the mem- bership in the Union had never dropped below 637 between June 10, 1937, and the date of the hearing. At the end of the direct examina- tion of Murphy, the respondent's counsel stated, ". . . we are not P. LORILLARD COMPANY 691 admitting the correctness of the figures that have just been given. We have no knowledge as to the membership of the union. We are not admitting it but I am not going to ask the gentleman any ques- tions." The Board's counsel then said, "We are perfectly satisfied by the testimony of this witness as to majority if it is not specifically denied by the respondent." The respondent's counsel, however, did cross-examine Murphy and brought out that of the 637 members, all but about 50 had paid dues in the ' 90 days prior to the hearing, 90 days being the period during which under the union rules a member was considered in good standing without the payment of dues. None of the union members had withdrawn from the Union after June 10, 1937. While the respondent in its answer and at the hearing denied that the Union represented a majority of its employees, on the ground of lack of knowledge, it introduced no testimony to refute the testimony of Murphy, nor did it request that the union cards be checked against the respondent's pay roll. It is undisputed that the respondent did not question the Union's majority status at the time negotiations were undertaken in June 1937. -The" union committee in its meet- ings with Harpring, the local plant manager, informed him that they represented it majority of the employees. Harpring's only reply was, "The one's that hadn't joined had it in their blood and they .would." The Union was not requested to take any steps to prove its majority during negotiations. The only time the matter was referred to by the respondent at all, was with one Ramirez, the New York representative of the Committee for Industrial Organiza- tion, when he presented the third union contract to the respondent. The respondent's representatives told Ramirez that if the contract was to cover all employees rather than members only, "he should first obtain from the Labor Board the certification provided for under the Wagner Act." 3. Nevertheless, the respondent entered into a discussion of the Union's proposal and of the respondent's counter- proposal with Ramirez, and stated several times at the, hearing that it. had. at all times stood ready to bargain with the Union. About a year after the conference with-Rainirez,'on July 8, 1938, the respond- ent wrote the Union, "However, we stand ready now, as always, to continue our negotiations with respect to the whole agreement, and for that purpose will be glad to hold a conference here with the representatives of our employees at any time mutually convenient." Under the circumstances set forth above, we see no reason for not accepting Murphy's testimony as a true statement of the Union's membership among the respondent's employees. 8 The respondent appears to have been .under the, Impression , that a formal certification was required under the Act and to have been addressing itself to that question rather than to that of whether the Liniou represented a majority. 692 DECISIONS OF NATIONAL LABOR RELATION S BOARD We find that on June 10 , 1937, and at all times thereafter, the Union was the duly designated representative of the majority of the employees in the appropriate unit, and, pursuant to Section 9 (a) of the Act, was the exclusive representative of all of 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 refusal to bargain On June 10, 1937, the Union's bargaining committee met with the plant manager, Iarpring, and presented him with a, proposed con- tract. Riley and Whitaker testified that Ha.rpring then looked at the proposed contract and remarked that it looked fair to him. Harpring stated at the hearing that he did not recall making any comment upon the proposed contract, but that he might have said that it did not look so bad to him. Harpring informed the commit- tee that he-would talk about the proposed contract with them, but that he had no authority to negotiate ,in agreement, and that he would send the proposal to the respondent's New. York office. On June 15, 1937, the Union received a counterproposal from the re- spondent's New York office in the form of a proposed contract. On about June 26, 1937, the Union submitted a second proposed con- tract to the respondent. In response to the Union's second proposed contract the respondent returned to the Union its original counter- proposal. The date of the respondent's second submission of its counterproposal is not clear from the record. Upon receiving the respondent's counterproposal for the second time, the Union sub- mitted to the respondent a third proposed agreement. On June 28, 1937, during the period when the union proposals and the respondent's counterproposal were being sent back and forth, the bargaining committee of the Union sent a telegram to the re- spondent's New York office requesting a meeting with representatives of the respondent who would be empowered to negotiate and sign an agreement, such conference to be held in Middletown. On the same day the Union sent a letter to the respondent making a similar re- quest for a meeting in Middletown in order that afinal agreement might be arrived at. On June 29, 1937, the respondent telegraphed the Union in part as follows: To our regret so many matters are now engaging our attention that we cannot undertake to negotiate by meetings at our various plants and branches stop those authorized to. negotiate and sign contracts are located at our main office and they will be glad to see the . members of your committee at any time mutual ly agreeable .. . P. LORILLARD COMPANY 693 On July 7, 1937, the Union wrote the respondent again requesting that negotiations, be carried on in Middletown and stating : ... I am again requesting your Company or those in authority to meet with a committee, duly elected, of your Middletown em- ployees for the purpose of entering into negotiations in the matter of Wages, hours of work and all other working conditions; said meeting to be held at the Middletown office of your plant. In the.matter of this committee going to New York for negoti- ation of this contract, which covers only matters pertaining to your Middletown plant, makes it appear a very unfair request of. your company and we believe by calling your attention to this matter, that in- all fairness to its employees, you and your Company will consider this matter.. The respondent replied to this letter on July 9, 1937, insisting that the .proper place to carry on negotiations was New, York City. In this letter the respondent also pressed the Union for an answer to a question which it had previously raised several times concerning a provision which had appeared in the respondent's counterproposal, but not in the Union's proposed contracts. The provision in the respondent's counterproposal was as follows : SEC. 7. The right of the Company in its sole discretion to diminish operations, in whole or in part, or to remove the plant, .or any part thereof, to another location, as the circumstances may require, is expressly recognized. In this connection, the Union recognizes that the Company expects within the next several months to diminish or to discontinue night operations. Concerning this proposal, the respondent wrote : ... you must see that it is most important to us to know for the purpose of further negotiations whether or not you will insist upon our surrendering control to our employees or, their repre- sentatives of the management of our factory at Middletown in these important. respects. The only basis for the respondent's supposition that the Union insisted or would insist upon the respondent's "surrendering control" over the factory was the Union's failure to incorporate an express provision in its proposed contract. No provision in the proposed contracts submitted by the Union attempted to limit the respondent's right to. move its plant or to diminish night work. As we have stated above, prior to July 20, 1937, the Union submitted to the respondent a third proposed agreement. This third proposed agreement was submitted by one:Ramirez, an officer of the G I. O. 694 DECISIONS OF NATTONAL LABOR RELATIONS BOARD in New York. Ralneriz met with the respondent's officials at the New York office and the proposals of both parties were discussed for 2 days. Ramirez did not return for further discussions on the third day, although the respondent appears to have believed he would. Ramirez had no authority to sign a contract in behalf of the Union. After Ramirez's visit, the Union received for the third time the respondent's original counterproposal. The Union did not then submit a fourth proposal. At the hearing the respondent's vice president and secretary, the only persons authorized to represent the respondent for purposes of collective bargaining, both testified that the respondent's counter- proposal , which was drawn without any personal conferences with the union representatives and sent to the Union by mail from New York, embodied the maximum concessions which the respondent would make and that no amount of oral persuasion and negotiation, wherever conducted, would have induced the respondent to have altered its first proposal in any important particular. After the respondent had submitted its counterproposal for the third time the Union took the matter up with the Regional I)ectoi, who attempted to bring about a settlement without proceeding to a formal hearing. When it appeared that no such settlement could be reached, a formal charge was filed by the Union and thereafter a complaint was issued. The question raised by the complaint is whether the respondent has refused to bargain collectively with the Union. Specifically, two issues are raised : First, whether the submission of the counterpro- posal with the fixed intention of adhering to its provisions from the outset constituted a refusal to bargain with the Union in good faith; and second, whether the respondent's refusal to meet with the union representatives in Middletown and its insistence upon hold- ing bargaining conferences only in New York City likewise con- stituted a refusal to bargain within the meaning of the Act. 1. Refusal to negotiate with respect to the counterproposal We have frequently held that the obligation unposed' liy the Act requires an employer to bargain in good faith in a genuine attempt to reach an agreement, and does not contemplate merely a series of empty discussions.' If the attempt to reach an agreement is to be a genuine attempt, the employer must be open to persuasion and not foreclose proposals in advance. In this case, however, it is plain that the respondent did not approach the Union's proposal with the open mind that is essential to genuine collective bargaining. As 4 See also Globe Cotton Mills v. National Labor Relations Board, 103 F . ( 2d) 91 (C. C. A. 5th). P. LORILLARD COMPANY 695 the respondent's chief officials admitted, the respondent throughout the negotiations took the position that its counterproposal, sub- mitted to the Union without any conferences, represented its final word, so that no amount of subsequent negotiations would induce the respondent.to change.'.its' mind. -Clearly the respondent thereby sub- stituted ' for the bargaining required by the Act a procedure of uni- lateral formulation of the terms of an agreement and its presenta- tion to the Union as the ultimate statement of the respondent's posi- tion, thereby rendering further negotiations, whether in person or by mail, futile by reducing them to a series of empty discussions. By pursuing this course the respondent has refused to bargain col- lectively with the Union within the meaning of Section 8 (5) of the Act, and we so find. 2. The respondent's refusal to confer in Middletown and its insistence on,confereinces-being held only in New York The respondent owns and operates at least seven plants. These plants are located in Connecticut, New Jersey, Pennsylvania, Vir- ginia, Ohio, Kentucky, and Wisconsin. The respondent's main office is in New York City, at which place its executives perform their duties. Each plant is supervised and managed by a local plant manager. Under rules adopted by the respondent after col- lective bargaining was first requested by its employees, the general inapt ggj-. at each . plant is not authorized to carry on collective bargaining for the respondent with the representatives designated by the employees at that plant, but in other respects he represents the respondent to the employees. The only persons authorized to bargain for the respondent are its vice president and secretary, whose head- quarters are in New York City and whose other duties require their presence in New York City. Beginning in the spring and early summer of 1937, the employees at several of the respondent's plants sought to bargain collectively with the respondent. The employees of the Middletown plant are represented by the Union, a C. I. O. affiliate; the employees of the Louisville, Kentucky, plant are represented by an A. F. of L. affiliate; and the employees at the Richmond, Virginia, plant are represented by an A. F. of L. affiliate. Each of these unions at different times requested the respondent to bargain with it for only the employees of the particular plant which it represented. The unions repre- senting the employees at the Middletown and Louisville plants re- quested that the respondent authorize representatives to deal with them in the towns in which the plants were situated. Although the record is not entirely clear, it appears that the union representing the employees at the Richmond plant made a similar request.. To 247383-40-vol. 1G-45 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each the respondent gave the reply that it did to the Middletown Union, that it would hold conferences only in New York City.- -The result of the respondent's stand has been that no agreement has been: reached with any of the unions representing the employees of these three plants. The Union contends that under the facts of this case the Act requires that bargaining conferences be held in Middletown, and that by the refusal to send or authorize representatives to deal with the Union in Middletown, the respondent has refused to bargain with the Union.- This contention requires an analysis of the employer's obligation to bargain collectively as set forth in Section 8 (5) of the Act. As we stated in Matter of Inland Steel Company,-' the employer's obligation under Section 8 (5) is the obligation to accept in good faith the procedure of collective bargaining as historically practiced. Nor- mally, the procedure of collective bargaining involves personal con ferences and negotiations between representatives of the employer and of the employees. We pointed out in Matter of S. L. Allen ct Com- pany s that "Interchange of ideas, communication of facts peculiarly within the knowledge of either party, personal persuasion and the opportunity to modify demands in accordance with the total situation thus revealed at the conference is of the essence of the bargaining proc- ess." Bargaining in the field "of labor relations is customarily carried on over the conference table at which the representatives of both parties confront each other and exercise that personal and oral 'per- suasion of which they are capable. While it may be that negotiations through the mails or by other indirect methods fulfills the statutory requirement when both parties accept that procedure, we think it clear that the Act contemplates that under ordinary circumstances personal conferences should be held if requested by either party. We believe further that the procedure of collective bargaining re- quires that the employer make his representatives available for con- ferences at reasonable times and places and in such a manner that personal negotiations are practicable. Obviously an employer whose single plant was located in San Francisco could not set up a branch office in New York and require that his employees or their representa- tives journey to New York in order to conduct bargaining negotiations. The question of whether the employer has furnished reasonable facili- ties for collective bargaining is a question of fact in each case. We conclude that in this case the employer has plainly not furnished such facilities and consequently has not fulfilled its obligation to bargain collectively under Section 8 (5) of the Act. 5Matter of Inland Steel Company and Steel Workers Organizing Committee and. Amal- gamated Association of Iron, Steel, and Tin Workers of North America, Lodge No. 0., 1010, and 1101, 9 N. L. R. B 783. 0 1 N. L. R. B. 714. P. LORILLARD COMPANY 697. The difficulties, and indeed the impracticability, of conducting bar- gaining negotiations in New York seem clear from the record. In the first place, the distance is great and the time and expense involved in reaching New York are substantial. Secondly, even if the Union has sufficient funds to send a bargaining committee to New York, which it denies, there is grave doubt that it has sufficient funds to maintain the committee there for the length of time necessary to conclude negotia- tions. To the Union, a contract is a necessity for the protection of itself and its 'members ; to ' the 'respondent, however, it is a matter of much less-importance. Therefore, if the respondent can require the negotiations to take place in New York City, it has a great advantage in that it can, without much cost to itself, delay any settlement until the. union committee is forced to return to the plant. Thirdly, to re- quire the Union to conduct negotiations at a point so far distant from the scene of operations, where the negotiations involve matters affect- ing-a; single plant, is to deprive the Union of the many advantages that accrue from conducting negotiations at the actual scene of operations where necessary information and. the support of the union membership may be obtained. As a result, the insistence of the respondent on bargaining in New York imposes grave burdens upon the Union, and, in practical effect, permits the respondent to avoid bargaining. The actual effect of the respondent's insistence upon negotiating in New York is we] 1 illustrated by the negotiations which were attempted by employees of the respondent's Louisville plant. The representa- tives of the Louisville employees went from Louisville, Kentucky, to New York City, as requested by the respondent, and, after spending 3 fruitless days there, returned to Louisville because their funds were exhausted. It will be remembered that none of the three unions which were compelled by the respondent to bargain in New, York succeeded in reaching an agreement with the respondent. Furthermore, in contrast to the respondent's insistence upon con- ducting negotiations in New York, it"is important to note that all employment relations between Middletown employees and - the' re- spondent, other than collective bargaining, are administered, at the Middletown plant. Employees are hired at the Middletown plant, work there under the supervision of the plant manager, receive their pay there, and are laid off and discharged by the plant manager. We' see no reason why collective bargaining should not also be, carried on there, at least so long as it relates only to the employees of that plant. The respondent urges that the C. I. 0. has offices in New York and that the Union could avail itself of the services of the C. I. 0.' officials in New York to carry on negotiations. But the use of the- C. I. 0. officials in New York to carry on negotiations in behalf of the Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD Middletown Union would impose serious burdens upon the Union. In order to bargain efficiently with the respondent, with the support and confidence of its membership, the Union is entitled to bring into the :.bargaining. negotiations local union members and employees of the respondent who know the conditions in the plant and who are known and trusted by the employees. This the Union clearly desired to do in this case. As pointed out above, the effect of requiring negotia- tions in New York is seriously to handicap, if not make impossible, participation by such representatives in the negotiations. The respondent states that "because labor agreements under present day circumstances are such an important item of business, the Com- pany must reserve such negotiations to its executives." The respond- ent may designate whomever it desires to represent it for purposes of collective bargaining, whether it be certain of its executives, its plant manager, or other persons, but such representatives must be available for collective bargaining. In designating its vice president- and sec- retary as its sole bargaining, representatives; the respondent"must"h'ave contemplated that they would spend a considerable portion of their time upon a matter of such importance as collective bargaining. The fact that they have other important duties to perform in New York .City cannot justify the encumbrances with which the respondent seeks to fetter the collective bargaining procedure. The respondent is a large enterprise, with plants in various sections of the country. As a consequence it may encounter greater difficulty in working out ways and means of carrying on collective bargaining at each of its plants than a smaller, more compact business organization might experience. It doubtless encounters such difficulties in matters other than collec- tive bargaining. But as long as the respondent is under a duty to bargain with the representatives of the employees of each plant it cannot shackle the collective bargaining procedure with difficulties arising out of its own organizational set-up and thereby render ineffectual the collective bargaining provisions of the Act. Finally, the record establishes that it is customary in the Middle- town area for bargaining negotiations to be carried on in the town in which the plant is located when the bargaining relates only to the employees of that plant. The record in the Louisville case, which was made a part of the record in the instant case, establishes that the same practice is customary in the tobacco industry. And in none of the cases which have come before us, other than the two ,cases against the respondent, have we encountered the contention that bargaining should be carried on elsewhere than at the place at which the plant is situated, when the bargaining relates only to that plant. P. LORILLARD COMPANY 699 We conclude that the respondent, in refusing to furnish represent- atives for personal conferences in Middletown, has not accepted the procedure of collective bargaining as required by Section 8 (5) of the Act. Futhermore, we are persuaded by, the evidence that the respondent failed to agree to negotiations in Middletown with a de- liberate intent of avoiding collective bargaining. This conclusion is supported both by our finding in the Louisville case and by our finding earlier in the instant decision that the respondent's very conception of collective bargaining is the negation of the bargaining contemplated by the Act and is predicated upon the notion that personal conferences, wherever held, are unnecessary and merely futile and empty discussions. We therefore find that the respondent has failed and refused to bargain collectively with the Union as exclusive representative of the respondent's employees in an appropriate unit, and has thereby engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. By such refusal the respondent has also inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed 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 of commerce. V. THE REMEDY As we have stated above, on October 31, 1938, Lorillard Employees Association petitioned for leave to intervene in the proceedings, alleging that it represented a majority of the employees in the Mid- dletown plant, and requesting an investigation and certification of representatives. As we have also stated, on November 10, 1938, the respondent filed a petition for a rehearing and election, alleging inter alia that it was informed that more than a majority of its em- ployees had joined Lorillard Employees Association. The allega- tions of these petitions, even if true, are subsequent to and in no way affect the acts complained of or the legal conclusion to be drawn therefrom .' a National Labor Relations Board v. The Louisville Refining Company, 102 F. (2d) 678 (C. C. A. 6th). 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As we have said in Matter of Inland' Steel Company: 8 Section 10 (c) of the Act authorized the Board, upon finding that a person "has engaged in or is engaging in" an unfair labor practice, to order such person "to take such affirmative action . . . as will effectuate the policies of this Act." This sec- tion Js designed to enable the Board to restore, as nearly as possible, the status quo had the wrongs not been committed. 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 re- fusal 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 . . . If an order to bargain collectively cannot be deemed an appropriate remedy for the refusal to bargain collectively unless the S. W. 0. C.'s majority is kept intact until the.Board can issue a decision, the plain policy and intent of the Act will be defeated. The respondent would be permitted further to evade the obliga- tion 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 re- spondent'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. In addition, since the principal issue in this case was the respondent's refusal to enter into a signed agree- ment regardless of the terms, and since we have found that this constituted a refusal to bargain collectively, we shall address our order specifically to the wrong sought to be remedied, and order the respondent to embody any understandings reached in a signed agreement upon request. Since the Board has found that the respondent refused to bargain collectively with Pioneer Tobacco Workers' Local Industrial Union No. 55, in order to effectuate the policies of the Act the Board will disre- gard any effect the unfair labor practices may have had upon the status of Pioneer Tobacco Workers' Local Industrial Union No. 55 as majority representative and will restore the situation existing at the time of the refusal to bargain, as far as possible. We shall, there- fore, order the respondent to bargain collectively upon request with Pioneer Tobacco Workers' Local Industrial Union No. 55. Since the principal issue in this case was the respondent's refusal to accord to the Union an opportunity for personal conferences in Middletown, 8 9 N. L. R. B. 783. P. LORILLARD COMPANY 701 -Ohio, and since we have found that that city is the appropriate and .reasonable place for collective bargaining and that the respondent's refusal constituted a refusal to bargain collectively, we shall address our order specifically to the wrong sought to be remedied, and order the respondent to bargain collectively, upon request, with the Union in Middletown, Ohio. Upon the basis of the foregoing findings of fact and the entire record in the case, the Board makes-the following : CONCLUSIONS OF LAW 1. Pioneer Tobacco Workers' Local Industrial Union No. 55 is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The production employees employed by the respondent, excluding employees with authority to hire and discharge and employees in a supervisory capacity, constitute a unit appropriate for collective bar- gaining, within the meaning of Section 8 (5) of the Act. 3. Pioneer, Tobacco Workers' Local Industrial Union No. 55 was, on June 10, 1937, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of col- lective bargaining, within the. meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with Pioneer Tobacco Work- ers' Local Industrial Union No. 55 as the exclusive representative of the employees in the above-described unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) and (5) of the Act. 5. The respondent, by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, 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. 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 the respondent, P. Lorillard Company, New York, New York, and its officers, agents, successors, and assigns, shall : 1. Cease and desist : (a) From refusing to bargain collectively in Middletown, Ohio, with Pioneer Tobacco Workers' Local Industrial Union No. 55 as the exclusive representative of the production employees employed by the respondent, excluding employees with authority to hire and discharge and employees in a supervisory capacity; 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) From 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, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively in Middletown, Ohio, with Pioneer Tobacco Workers' Local Industrial Union No. 55 as the ex- clusive representative of the production employees employed by the respondent, excluding employees with authority to hire and discharge and employees in a supervisory capacity, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Post immediately, and maintain for a period of at leasts.sixty (60) consecutive days from the date of posting, notices to its employees in conspicuous places throughout its Middletown plant, stating that the respondent will cease and desist as aforesaid; (c) Notify the Regional Director for the Ninth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.