Henry Glass and Co.

In the Matter Of HENRY GLASS AND COMPANY and UNITED WHOLE- SALE & WAREHOUSE EMPLOYEES OF NEW YORK, LOCAL No. 65, C. I. 0.1 Cases Nos. R-733 and C-1,065.-Decided March 18, 1940 Cotton and Rayon. Converting Indnstrg-]uterfeienee, Restraint, and Co- ercion: anti-union speech of officer of respondent warning that respondent would not deal with "outside" union ; hiring new employees to intimidate present employees-Unit Appropriate for Collective Bargaining: all employees excluding one relative of officers, one employee in confidential position, sales- men, executives, and supervisory employees-Representatives: proof of choice: membership cards ; majority status prior to strike not affected by withdrawal in view of respondent's interference-Collective Bargaining: refusal to cooper- ate with Union in reasonable methods of establishing claim to majority status ; employer ordered to bargain-,Strike: precipitated by refusal to bargain-Dis- crrini,nation.: refusal to reinstate some strikers following reorganization of busi- ness because of their union membership and activity ; solicitation of resigna- tions from the union of other strikers who were not refused reinstatement- Reinstatement: ordered for two strikers refused reinstatement whose names appear on complaint-Back Pay: awarded-Investigation of Representatives: petition for dismissed in view of order to bargain. Mr. Albert Ornstein and Mr. Martin I. Rose, for the Board. Mr. Norbert Ruttenberg and Mr. Henry G. Friedlander, of New York City, for the respondent. Mr. Harry Sacker and Mr. Samuel M. Sacker, of New York City, for the Union. Miss Margaret M. Farmer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On April 5, 1938, United Wholesale & Warehouse Employees of New York, Local 65, C. I. 0.,1 herein called the Union, filed with the Regional Director for the Second Region (New York City), a pe- tition alleging that a question affecting commerce had arisen con- 1 Incorrectly designated in the order directing the investigation as "United Wholesale & Warehouse Employees of New York." 21 N L R B, No. 73. 727 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerning the representation of employees of Henry Glass and Com- pany, New York City, herein called the respondent, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 18, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On April 25, 1938, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the respondent and upon the Union. Pursuant to the notice, a hearing was held on April 29, 1938, at New York City, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. After the hearing the respondent requested oral argument before the Board. On June 2, 1938, a hearing for the purpose of oral argument was held before the Board in Washington, D. C. The Union and the respondent were represented by counsel and partici- pated in the argument. The Union and the respondent filed briefs. Upon amended charges duly filed by the Union, the Board, by the Regional Director, issued its complaint dated October 27, 1938, against the respondent alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and upon the Union. With respect to the unfair labor practices, the complaint alleged in sub- stance (1) that the employees of the respondent in its New York plant, exclusive of salesmen, officers, and supervisory employees, constitute a unit appropriate for the purposes of collective bargain- ing; (2) that although from on or about April 1, 1938, to about May 1, 1938, a majority of the employees in such unit designated the Union as their representative for the purposes of collective bar- gaining, the respondent, on or about April 8, 1938, and thereafter refused to bargain collectively with the Union; (3) that on or about May 26, 1938, at the termination of a strike caused by the unfair labor practices of the respondent, the respondent discouraged mem- bership in the Union by refusing to reinstate John Nugent and Henry Cohan, employees, to their former positions in its plant be- cause they had joined and assisted the Union; (4) that by the fore- HENRY GLASS AND COMPANY 729 going acts, by urging, persuading, and warning its employees to refrain from becoming members of the Union, by threatening them with reprisals if they remained members of the Union, by forcing its employees to resign from the Union as a condition of reinstate- ment after the termination of the strike mentioned above, and in other ways, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent duly filed an answer to the complaint denying that the unit designated in the complaint was appropriate for the purposes of collective bargaining, denying the alleged unfair labor practices, and alleging certain affirmative defenses. On December 23, 1938, the Board, acting pursuant to Article II, Section 37 (b), and Article III, Section 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered that the representation case and the case arising from charges of unfair labor practices be consolidated for all purposes and that one record of the hearing be made. Pursuant to notice, a hearing in the consolidated cases was held in New York City from January 5 to 13, 1939, before James C. Par- adise, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and par- ticipated in the hearing. 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 commencement of the hearing the Trial Examiner granted a motion of the respondent, filed prior to the hearing, for a bill of particulars of certain allega- tions of the complaint. Pursuant to this ruling, counsel for the Board read into the record the names of the officers and agents of the respondent and the approximate dates upon which said officers and agents were alleged to have (1) urged, persuaded, or warned the re- spondent's employees from becoming or remaining members of the Union; (2) threatened employees with discharge for remaining mem- bers of the Union; (3) spied upon meetings of the union; (4) forced employees to resign from the Union; (5) provided funds to em- ployees in order that said employees might reimburse the Union for strike benefits. The Trial Examiner refused the request of the re- spondent to require counsel for the Board to particularize other acts by which the respondent was alleged to have intimidated and co- erced its employees but ruled that should evidence in this connection be adduced at the hearing which should surprise the respondent, he would grant the respondent time to prepare its defense. The Trial Examiner denied a motion of the respondent for dismissal of the complaint on the ground that the amended charges upon which the complaint is based were not drawn in accordance with Article II, 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 4 (c), of the Board's Rules and Regulations. The respond- ent objected to the order of consolidation on the ground that such order was improper after the Board had heard oral argument in the representation proceeding. Counsel for the respondent was accorded leave by the Trial Examiner to file a motion with the Board in Washington addressed to said order of consolidation. The Trial Examiner, however, denied a request for a continuance of the hear- ing pending Board action on such motion. The respondent con- tended at the hearing and in its brief that said denial of a continu- ance deprived it of a fair hearing in that it was compelled to go to the hearing without knowledge of the intent of the order of consoli- dation or of the precise issues to be met. We find this contention to be without merit. The Board has reviewed the rulings upon motions and objections to the admission of evidence made by the Trial Examiners at both hearings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 24, 1939, Trial Examiner Paradise filed his Intermediate Report, a copy of which was duly served upon all parties, finding that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) of the Act and recommending that the respondent cease and desist from such practices and that it reinstate with back pay the two employees named in the complaint. Thereafter the respondent filed exceptions to the Intermediate Report and a brief and requested oral argument before the Board. Pursuant to notice duly served upon all parties, a hear- ing was held before the Board in Washington, D. C., on June 22, 1939, for the purpose of oral argument. The respondent and the Union were represented by counsel and participated in the hearing. In its statement of exceptions and brief and in the presentation of its case upon oral argument, the respondent contended, among other things, that it was prejudiced by conduct of Trial Examiner Paradise at the hearing and that it was deprived of the right to a full and im- partial hearing. We have examined and reviewed the record in. re- spect to the instances cited by the respondent in support of its con- tention. We are of the opinion that the conduct complained of was not prejudicial to the respondent and that it was accorded a full and fair hearing. The Board has considered the exceptions to the Inter- mediate Report and the various briefs filed by the parties, and, save as the exceptions are consistent with the findings, conclusions, and order below, finds them to be without merit. On October 17, 1939, the Board, acting pursuant to Section 10 (b) of the Act and Article II, Section 7, of National Labor Relations Board Rules and Regulations-Series. 2, issued an amendment to the HENRY GLASS AND COMPANY 731 complaint which was duly served upon the respondent and the Union.2 The amendment alleged that the respondent, by refusing to bargain collectively with the Union, as alleged in paragraphs 3, 4, and 5 of the original complaint, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (5) and Section 2 (6) and (7) of the Act. In a letter accompanying the said amendment to the complaint, the Board notified the re- spondent that it might, if it desired, submit with its answer to the complaint as amended, a request for a hearing together with a state- ment of the nature of the proof to be submitted at such hearing. On October 28, 1939, the respondent filed an answer to the com- plaint as amended denying the allegations thereof ; affirmatively alleging (1) that the Board is guilty of lathes in amending its com- plaint after the conclusion of the hearing, the issuance of an Inter- mediate Report, and oral argument before the Board, and (2) that the amendment of the complaint deprives the respondent of a fair trial for the reason that it raises an entirely new issue; and praying dismissal of the complaint as amended. The respondent did not avail itself of the opportunity, afforded it by the Board, to request a further hearing. We find no merit in the affirmative allegations contained in the respondent's answer to the complaint as amended. The amendment of the complaint imposes no hardship upon the respondent. It serves merely to supply the conclusion of law, omitted from the original complaint, that facts alleged as unfair labor practices within the meaning of subdivision (1) of Section 8 of the Act constitute such practices within the meaning of subdivision (5) of that section as well. The issues of fact framed by the amended pleadings differ in no respect from those framed by the original pleadings. They were fully tried at the hearing, and in addition, the respondent was offered a further hearing. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Henry Glass and Company, a New York corporation which main- tains its principal place of business in New York City, is a cotton and rayon converter engaged in the business of buying, selling, and distributing greige cloth and finished cotton and rayon goods. It purchases more than a million yards of greige or unfinished cloth 9 The amendment was issued by the concurrent action of Chairman J. Warren Madden and Mr Edwin S Smith Mr William M . Leiserson appended a statement that he did not think it proper to issue the amendment. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD annually from mills located outside the State of New York. A very small percentage of this cloth is sold to various purchasers without further processing. A large percentage of it is shipped to finishing plants in Rhode Island, Connecticut, South Carolina, New Jersey, and Pennsylvania, where it is bleached, dyed, and printed according to the orders of the respondent. Approximately 50 per cent of the finished goods are sent, upon the respondent's orders, directly from the finishing mills to the respondent's customers in almost every State of the United States, and in foreign countries. Approximately 50 per cent of the finished goods are shipped from the finishing mills to the respondent in New York and in turn shipped by the respondent to its customers throughout the United States and to foreign countries. Practically all the goods purchased, processed, and sold are shipped by the respondent or upon the respondent's orders across State lines. The annual sales of the respondent amount to approximately $2,000,000. The respondent normally employs approximately 85 persons. II. THE ORGANIZATION INVOLVED United Wholesale & Warehouse Employees of New York, Local 65, C. I. 0., is a labor organization affiliated with the Committee for Industrial Organization ,3 admitting to membership "any person em- ployed in or about any wholesale warehouse or any other central distribution establishment." III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union began its organizational activity in the respondent's plant' about March 1, 1938. It shortly recruited as members a substantial number of the respondent's employees, and on April 4, 1938, elected a shop committee for the plant. John Nugent, an employee named in the complaint, was elected a member of this committee. The respondent was informed of this activity by Larry Myers, a stockroom employee who was a relative of an officer of the respondent and who attended union meetings but did not join the organization. On April 5 Nugent introduced David Livingston, the business agent of the Union, to Ellis Wilder, the assistant secretary of the respondent, and a conference between representatives of the respond- ent and of the Union was arranged for the morning of April 6. 8 Now the Congress of Industrial Organizations. * The respondent's place of business, apparently consisting of offices and a warehouse, will be designated herein as the plant. HENRY GLASS AND COMPANY 733 About an hour before the scheduled conference, Herbert Glass, the assistant treasurer of the respondent, called the plant employees together and addressed them on the subject of unions. Three em- ployees who attended the meeting testified that Glass informed the employees that he had heard they were interested in unions and that he wished them to know that the respondent had no objection to their joining a union so long as the union was "merely a social club," but that the respondent would never "deal with a union or other outside agency" ; also that when one of the employees reminded Glass ,that an employer was required by law to negotiate with the representative of a majority of his employees, Glass replied that he was not prepared to go into "legal technicalities" at that time. Two of these witnesses testified further that Glass then stated that any employee who had a personal grievance concerning the terms of his employment could make an appointment to see him, but that when one employee arose in the meeting and inquired why he had not had a recent salary increase, Glass told him that he (the em- ployee) was at that time receiving the maximum salary paid by the respondent for his particular job. Glass, although in substan- tial agreement with the three employees concerning certain details of the meeting, denied that he had suggested that the employees limit their union activity to the program of a "social club" or that he had stated that the respondent would refuse to negotiate with a union. However, after considering the incident in connection with other incidents discussed below, we are of the opinion that the testimony of the three employees concerning the contents of Glass' remarks is correct. An hour after Glass' speech to the employees, Livingston met with Glass, Silver, who was the treasurer of the respondent, and Egel- hofer, who was a director of the respondent in charge of the credit department. Livingston stated that the Union represented a ma- jority of the respondent's employees and requested the opening of negotiations for a contract. The representatives of the respondent asked that the conference be deferred until they had had an oppor- tunity to discuss with other officers of the firm the matter of union recognition and the advisability of entering into contract negotia- tions. A second conference was arranged for April 8. Both Liv- ingston and the representatives of the respondent agreed to "preserve the status quo" in the meanwhile. During the afternoon, a few hours after the above-mentioned con- ference, a new employee appeared in the respondent's shipping department. When Nugent, upon instructions from his superior, attempted to obtain necessary data concerning this employee for pay- roll purposes, he was told by Martin Bermont, the manager of the 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shipping department 5 that "all that had been taken care of." Nugent, evidently of the opinion that the presence of the newcomer was con- nected with the union activity in the plant, inquired of Bermont whether the respondent "hoped to intimidate the Union with one man." Bermont replied, "Don't worry there will be more here tomorrow." At a union meeting held on the evening of the same day, April 6, Livingston reported the results of the day's conference with the respondent, including the respondent's agreement to maintain the status quo pending the meeting scheduled for April 8. Nugent then reported the appearance of a new employee in the plant, together with Bermont's prediction of the presence of more such employees in the future. The union members thereupon voted to go to the plant on the following morning, but to refuse to work if they found new employees on the premises. The following morning, when the union members reported for work, they found that four new employees were already in the plant. They refused to work pending the dismissal of these individuals. After Livingston had conferred with Egelhofer, the strangers were directed to leave the plant, and work was resumed. Glass testified that the new employees were hired by the respondent for the purpose of insuring the continued operation of the respond- ent's business in case of a strike by the respondent's employees. He stated that Livingston refused to guarantee that the respondent would be notified in advance of any strike action undertaken by the Union, and contended that it was necessary to employ workers who, the respondent knew, would not strike. We reject this contention. As we have noted above, Livingston had accepted the respondent's sugges- tion to postpone a discussion of the Union's demands until April 8 and had agreed on behalf of the Union to maintain the status quo until that time. There is no indication in the record that the Union had repudiated this commitment, that it had threatened to strike, or that it was contemplating strike action at the time the new men were employed. We are of the opinion that the respondent employed the new workers for the purpose of intimidating its employees, thereby discouraging them from joining the Union and from engaging in union activity. We find that by the speech of Glass on April 6 and by the hiring of new employees on April 7 under the conditions set forth above, the respondent interfered with, coerced, and restrained its employees in the exercise of rights guaranteed in Section 7 of the Act. 6 The respondent contends that Bermont was not a supervisory employee . In Section III B, 2, infra, we find that he was. HENRY GLASS AND COMPANY 735 B. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that all of the employees in the respondent's New York plant, exclusive of salesmen, officers, and supervisory em- ployees, constitute an appropriate bargaining unit. At the first hearing representatives of the Union requested the further exclu- sion from the unit of certain relatives of officers of the respondent, receiving special privileges and more closely allied in interest to the respondent than to their coworkers. The respondent contends that the unit should include all its employees except its eight officers and executives and its out-of-town salesmen.6 A list of the employees of the respondent, submitted in evidence at the first hearing, shows that of the 84 persons listed thereon, 15 are out-of-town salesmen and 6 are New York City salesmen. It appears from the record that the out-of-town salesmen live in States as far removed from New York City as California, Oregon, and Texas. They rarely report to the home office in person, and have little or no contact with the other employees of the respondent. Neither of the parties contends for the inclusion in the unit of the out-of-town salesmen, and we shall exclude them. The Union requests the exclusion of the city salesmen from the unit on the ground that they consider themselves potential heads of departments, that their duties and interests differ fundamentally from those of the other employees of the respondent, that they have shown no interest in the Union, and that the Union has made no effort to organize them. The record shows that these salesmen spend approximately an hour per day on the respondent 's premises in order to make sure that their orders are properly handled. Oc- casionally they may pick a special order out of the stockroom in order personally to supervise its shipment to a customer. The bal- ance of their time is spent selling in the New York City area. Their contact with employees in other departments is slight, and we find no showing of any community of interest between the two groups. We think this situation clearly distinguishable from one in which salesmen spend a substantial portion of their time on the employer's premises doing inside work and assisting generally in the work of the various departments.' Under the circumstances of this case, we shall exclude city salesmen from the unit. 6 The Company stated at the first oral argument before the Board that it was willing to agree to the exclusion from the unit of out -of-town salesmen 7 See, for example , In Matter of Lidz Brothers , Incorporated, and United Wholesale Employees (Local No. 65), 5 N. L. R. B 757. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent contends that the three sample carriers in its employ should be classified as salesmen in any consideration of an appropriate bargaining unit. The Union maintains that such a classification is erroneous and that sample carriers should be in- cluded in the unit. It appears from the record that sample carriers spend from one-third to one-half of their time accompanying city salesmen on their rounds. They carry samples for the salesmen, and occasionally interview customers. For the balance of their time they work as regular employees in various departments of the respond- ent. Their salary is approximately that of the average employee. One of their number was a member of the Union at the time of the first hearing. We are of the opinion that sample carriers should be included in the unit. The Union also maintains that the following individuals should be excluded from the unit: M. Bermont, L. Leff, G. Hale, and G. Kris," on the ground that they are highly paid executives at the head of their respective departments; F. L. Cassidy on the ground that he is a salesman ; A. Wilner and Miss L. Wilner on the ground that they are relatives of the officers of the respondent receiving special privi- leges; and Miss P. Sohlman on the ground that she is a stylist and a specialist in her field. The respondent takes the position that the power to hire, to discharge, and to supervise the work of the various departments is confined to the officers of the respondent, that the above-named persons are ordinary employees, and that any super- visory powers exercised by them are unsanctioned by the respondent. It maintains that they should be included in the bargaining unit. The record discloses that M. Bermont, known among the employees as Traffic Manager in the packing and shipping department, is in charge of the routing of all domestic shipments and exercises general supervision over the other employees in the packing, shipping, and stock departments. He was mentioned by Glass as one of the "heads of departments" with whom the officers discussed the reemployment of individual employees at the end of the strike.9 L. Leff, described by the respondent as "our export man," is in complete charge of the handling of all shipments for export and supervises the work of the employees in his department. His salary is approximately four times the average salary earned by the majority of the employees. During the winter, he travels for the respondent to Cuba and other foreign countries. G. Hale is a credit investigator, working in close contact with the credit officer of the respondent. He is at all times in pos- 8 The Union contended at the first hearing that B Newman , the cashier of the respond- ent, should also be excluded from the bargaining unit It appeals from the record of the second hearing that Newman is no longer employed by the respondent and that his posi- tion has been abolished Under the circumstances we find it unnecessary to include him in the discussion. 9 See Section III C below. HENRY GLASS AND COMPANY 737 session of confidential information concerning customers of the re- spondent and occasionally approves small accounts for credit on his own initiative. G. Kris is described by the Union as "office manager of the employer office." There is ample testimony to support this description. His salary is approximately double that of the em- ployees whose work he directs and supervises. We are of the opinion that Bermont, Leff, and Kris are supervisory employees, and that Hale occupies a peculiarly confidential position with the respondent. We shall exclude all four from the bargaining unit. It appears that F. L. Cassidy ' is a floorman and office salesman. He waits on customers on the premises, visits resident buyers in New York and vicinity, and attends to various matters of a clerical nature. His salary is approximately five times that earned by the average employee. In view of the. nature of his duties, we believe that he should be classified as a salesman and excluded from the unit. The record shows that A. Wilner is responsible for keeping the records in the converting department and supervises the work of approximately four employees, is a brother of the president of the respondent,, and receives a salary approximately five times as great as that of the employees under him. We shall exclude A. Wilner from the bargaining unit. The Union contended that Miss P. Sohlman is a stylist and a specialist in her field and should be excluded from the unit. It has not been shown, however, that her duties are supervisory in charac- ter or that her compensation is greater than that of her coworkers. The respondent stated that she was engaged in making out bills of lading and operating a comptometer. Miss Sohlman should be included in the unit. The respondent stated that in its opinion Peggy Spiegler should be excluded from the unit. It submitted Spiegler's employment card dated January 13, 1938, upon which' she had signed a statement to the effect that she understood her employment to be temporary. The record discloses that Spiegler was first employed by the respondent in 1926 and has been on the respondent's pay rolls for five separate periods of varying length since that time. No reason was given for the intermittent character of her employment. We shall include Spiegler in the unit. The Union desired the exclusion of Miss L. Wilner from the bar- gaining unit on the ground that she was a daughter of the secretary of the respondent and was not active in the plant prior to the strike. It is not possible to obtain from the record her exact status as an employee either at the time of the strike or thereafter. At the first hearing a representative of the respondent testified that Wilner had been considered an employee of the respondent for 18 months but 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she had been absent for "several months" in the summer of 1937 and was not working at the time of the strike. John Nugent testified that she had not worked in March or the early part of April preceding the strike and that he had been instructed to remove her name from the pay roll. Her name is not listed on the pay roll of April 5, 1938, introduced in evidence. It appears, however, that she returned to the plant and worked during the strike. Under the circumstances we shall not at the present time make any de- termination as to whether or not L. Wilner should be included in the bargaining unit. We find that all the employees of the respondent, including sample carriers, but excluding all salesmen, A. Wilner, G. Hale, and execu- tive and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to employees of the Company the full benefit of their right to self- organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Designation of the Union by a irlaj ority in the appropriate unit The respondent's pay roll for the first week in April 1938, sub- mitted in evidence, contains the names and classification of 84 em- ployees. Of these, 53, excluding L. Wilner, and 54 including her, were within the appropriate unit. The Union submitted in evidence 33 membership cards signed prior to April 7, 1938, by employees within the unit. The respondent did not challenge the genuineness of the signatures on any of these cards, and did not contend that any of these 33 members resigned from the Union prior to the strike of April 11, 1938. On April 8, 1938, 33 of the employees within the appropriate unit had designated the Union as their collective bargaining agent. We find that on April 8, 1938, and at all times thereafter '° the - Union was duly designated and selected by a majority of the em- ployees in the appropriate unit as their representative for the pur- poses of collective bargaining. By virtue of Section 9 (a) of the Act, therefore, it was the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to 10 We find hereinafter that the resignation of certain union members from their em- ployment and also the resignations of members from the Union on or about May 26, 1938, at the end of the strike, were due to the unfair labor practices of the respondent Such unfair labor practices cannot operate to change the bargaining representative previously selected by the untrammeled will of the majority . See Matter of Bradford Dyeing Asso- ciation ( U S A ) (a corporation) and Textile 1Vonkers Organizing Committee of the C I 0, 4 N. L R B 604, 106 F (2d) 119; Matter of McKaig-Hatch, Inc, and Amal- ga ni aced Association of Iron , Steel, and Tan Workers of Nom th Amer ice, Local No 1139, 10 N. L R B 33; Matter of Lady Ester Lingerie Corp. and International Ladies Garment 1Vorlers Union-Affi liated with the Committee for Industrial Organization, 10 N. L R. B. 518 HENRY GLASS AND COMPANY 739 rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain On April 8 Livingston and Barbara Rand, the secretary of the union organization committee, met with Herbert Glass, the assistant treasurer of the respondent, William Egelhofer, a director, and Nor- bert Ruttenberg, the respondent's attorney. Livingston claimed that the Union represented a majority of the respondent's employees within an appropriate unit and demanded that the respondent nego- tiate a collective bargaining contract with him. Relying upon a belief that the membership reports given at union meetings had been relayed to the respondent by Larry Myers, a non-member employee who had attended union meetings," and that the respondent was therefore aware of the approximate number of union members, Liv- ingston suggested that proof of the Union's claim to majority repre- sentation was a formality which could be complied with at any time and urged the respondent to commence at once the negotiation of a contract. Ruttenberg, the respondent's spokesman, denied knowledge of the validity of the Union's claim that it represented a majority of the respondent's employees and took the position that satisfactory proof of this claim must precede the discussion of a contract. The conference thereupon turned to a consideration of what constituted such proof. Ruttenberg requested that he be permitted to inspect the union membership cards. Livingston refused this request and proposed other methods. He offered, inter alia, to submit the union membership cards to the Regional Director and request him to verify the Union's claim by checking the signers' names against the respond- ent's pay roll; or to prove his claims in a consent election under the auspices of the Regional Director. There is a sharp conflict in the testimony of the conferees concerning the reception accorded the above proposals. Ruttenberg testified that he agreed to the holding of a consent election provided the parties could reach an agreement as to the appropriate unit, but that Livingston refused to cooperate in determining such a unit. Livingston stated that he described the group of employees whom he considered eligible for collective bar- gaining but denied that Ruttenberg had questioned or sought to dis- cuss either the appropriateness of said group as a bargaining unit or the specific problem of inclusions or exclusions of employees. He testified further that Ruttenberg refused to consider any of the meth- ods proposed, stated that the respondent would have nothing to do with the matter, and, when asked what the respondent would do in n See Section III A above The evidence shows that 11ISets reported the meeting of April 4 to the respondent and that he attended subsequent meetings. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case the Union succeeded in proving said claim, answered that the respondent would solve that problem when and if it arose. This testimony was substantially corroborated by Barbara Rand. We find that the question of a bargaining unit was not discussed and that Ruttenberg refused to cooperate in any of the methods proposed by Livingston in an attempt to prove the Union's claim. Livingston informed the respondent's representatives that he could also prove the Union's claim by calling a strike and the respondent's representatives left the conference with the impression that the Union was prepared to strike to secure its demands. Following the conference of April 8, several union members who felt that it would be necessary to strike unless some solution of the question of union recognition could be found quickly, and who feared that employees who struck would be discharged, appealed to Osman, the president of the Union, to exert further effort to persuade the respondent to consider the Union's claims. Osman thereupon ar- ranged to confer with Ruttenberg on the following day. On the evening of April 8 the Union held a meeting and voted to strike on April 11. However, it empowered the shop committee to rescind this vote if the outcome of Osman's negotiations seemed to warrant such action. The scheduled conference, which was held on the morning of April 9 in Ruttenberg's office, was attended by Osman and Dorothy Rand on behalf of the Union. The testimony of Rand and Osman is in sharp conflict with the testimony of Ruttenberg and his office asso- ciate, Henry G. Friedlander, concerning what occurred there. The Trial Examiner on basis of the evidence adduced, together with his observation of the witnesses, found the version of the conference as given by Osman and Rand to be substantially accurate. We have considered the conflicting testimony of the two groups concerning this conference and concur in the opinion of the Trial Examiner. We find that the following events occurred : Osman offered (1) to submit the membership cards or the records of the Union for the respondent's inspection, (2) to submit his claim to arbitration, (3) to request the employees to go individually to an officer of the respondent and inform him of their union affiliation, or (4) to prove his claim by any of the methods suggested by Livingston and rejected by the respondent at the conference of April 8. Osman informed Ruttenberg that the employees were prepared to strike to secure recognition for the Union as bargaining agent and appealed _ to Ruttenberg to avert such a strike by accepting proof of the Union's claims. Ruttenberg took the position that he was not compelled to consider the Union's claims at that time and that he would not deal with the Union at any time unless he was compelled by law to do so. He refused to accept any of the methods of proof offered by HENRY GLASS AND COMPANY 741 Osman in support of the Union claims, failed to propose any other method and, in response to Osman's remarks concerning a strike, stated that the respondent was well equipped to handle strikes. The shop committee of the Union met immediately after the con- ference of April 9 and decided to request the respondent to permit each union member to inform the respondent individually of his union allegiance in a final effort to prove that the Union repre- sented a majority of the respondent's employees. Nugent and Liv- ingston testified that Livingston and three committee members in- terviewed Glass in his office on the morning of April 11. Livingston testified that, in accordance with the decision of the shop committee, he offered to call each union member to interview Glass individually provided that proof of the extent of the Union membership in the plant established in this way, if it sustained the Union claim, would be accepted by the respondent as a basis for recognition of the Union as bargaining agent. He testified that Glass replied that he would not negotiate with the Union even though a majority of the em- ployees told him they were union members. Glass, after first testi- fying that he could not remember whether or not such a conference had taken place, finally stated that he had not conferred with Living- ston after April 8. We accept the testimony of Nugent and Liv- ingston in this matter. Thirty-one of the respondent's employees struck immediately after the conference. The strike continued until May 26. On three separate occasions the Union offered to prove that it represented a majority of the plant employees within an appropriate unit by various methods which were reasonable and practical. If the respondent sincerely intended to accord the Union any bar- gaining rights to which it could prove itself entitled it was incumbent upon the respondent to cooperate with the Union in the proof of its claim.12 However, the respondent did not so cooperate; instead it rejected each of the methods of proof proposed by the Union. We are of the opinion that its actions betoken a lack of good faith and that they were for the purpose of obstructing and delaying the Union's efforts to bargain for the respondent's employees. We find that on April 8, 9, 11, and thereafter the respondent refused to bargain collectively with representatives of a majority of the em- ployees within an appropriate unit, and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. We find that the strike of the respondent's employees which began upon April 11, 1938, was caused by the unfair labor practices of the respondent described above. 12 See Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron, Steel and Tin Workers of North America , Lodge No. 1719, 7 N. L R. B. 714, 723. 2880 ,2-41-vo1 21--48 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The refusal to reinstate John Nugent and Henry Cohan after the strike At the termination of the strike on May 26, 1938, the respondent refused to reinstate John Nugent and Henry Cohan on the ground that the positions of these employees had been eliminated, that their duties had been distributed among other employees, and that the respondent no longer needed their services. The Union contends that the re- spondent refused to reinstate the said employees because of their union membership and activity. John Nugent was employed by the respondent in 1931 as an office boy. In 1932 he was transferred to the position of assistant to Newman, the cashier, and was employed continuously in that position until the strike. His duties, mostly routine in character, consisted of a miscellany of tasks including, among others, listing in the check cash book the names of customers sending remittances, making up remittance slips for the use of the bookkeeping department, preparing deposit slips and making bank deposits, handling petty cash vouchers, preparing the pay roll for distribution, and entering social security data in the pay-roll books. During the strike these tasks, which were essential to the operation of the business, were assumed in part by Newman, Nugent's superior, and in part by Richard Myers, a stock boy whom the respondent transferred to the office force. Henry Cohan was employed by the respondent in 1933 in the ship- ping-department office where he did filing, typing, and routing of bills of lading. Six months later he was transferred to the bookkeeping department where he was working at the time of the strike. His duties included the computation of freight, cartage, and insurance on shipments, the entry of such charges, and the billing of customers for them. Cohan was interested in his work and desirous of advance- ment. He made notes on the respondent's stock during the day and studied these notes after work in order to familiarize himself with the business. Herbert Glass praised his work and told him that he had a future with the firm. Approximately a month before the strike Glass placed him in charge of the respondent's stationery department, where the tags and bands needed by the mills are handled and the respondent's stationery supplies are kept. Both Nugent and Cohan were prominent union members. Nugent had attempted to interest the office employees in the Bookkeepers, Stenographers and Accountants' Union in 1937. He was a leader in the organization of the Union in the plant and, as a member of the shop committee, introduced Livingston to Ellis Wilner on April 6, 1938. During the strike he, together with several other striking employees, visited certain of the respondent's customers and attempted to persuade them to boycott the respondent. As a representative of HENRY GLASS AND COMPANY 743 the Union he interviewed the respondent in regard to the reinstate- ment of the strikers. The respondent was familiar with most, if not all of this activity. During the strike Cohan served the organization both on the picket line and in soliciting the respondent's customers to boycott the respondent. The respondent contended that Cohan and Nugent, together with other employees, were refused reinstatement at the end of the strike because a decline in its business had necessitated the elimination of, the positions held by these employees. The respondent asserted that the curtailment of its personnel at the end of the strike was carried out in accordance with a plan of reorganization drafted and adopted prior to the strike and partially carried out in the early months of 1938. The record does not support these contentions. Although the respondent introduced evidence to show that by 1938 its business had declined to approximately one-third of its 1926 volume, it did not show that this decline was greater during the 6-month period just prior to the strike than for any preceding 6-month period, nor that the strike or any event prior thereto necessitated a drastic reduction in its New York pay roll on the day the strike ended.13 Representa- tives of the respondent admitted on cross-examination that the re- spondent had not reduced the salaries of its officers for 5 years and that a few days after the strike ended, it restored an 8-per cent wage cut previously put in effect. In regard to the refusal to reinstate Nugent, Glass testified that since the reorganization plan included the elimination of the position of Newman, the cashier, the position of Nugent, as assistant to the cashier, would necessarily be eliminated. The position of the cashier was not, however, eliminated either during or shortly after the strike. Furthermore, there is no evidence in the record to show when the respondent expected to carry out its plan in regard to this depart- ment. Testimony which the respondent did not contradict at the hearing shows that Newman resigned about August 1, 1938.14 Glass testified that even had there been no strike Nugent would have lost his position before Newman resigned, but evaded the question of whether, had there been no strike, Nugent would have been dismissed as early as May 26. In regard to Cohan, Glass testified that the employment of a clerk to compute the freight and cartage on cottons had been rendered un- necessary by a shift in the bulk of the respondent's business from cottons to rayons. It appears that there are no freight or cartage 13 At least eight employees were refused reinstatement This number constitutes ap- proximately 15 per cent of the 54 maintenance and production employees , exclusive of salesmen and supervisory employees, on the pay roll immediately preceding the strike 14 Ellis \vilner testified that he thought Newman resigned toward the end of June, but he was not sure about this Subsequent testimony of witnesses i1'acrng the time as about August 1 was not challenged 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges added to the price of rayons. There is no evidence in the record, however, to show when this shift in business took place. Furthermore, there is no evidence to indicate what proportion of Cohan's time was normally spent in the computation of freight and cartage charges. Glass testified that anyone holding Cohan's job on May 28 would have "been on the way out" because it was planned to eliminate his position under the reorganization plan. On the other 'hand, Glass testified that, had there been no strike, the discharge of Cohan would have depended upon various factors, and would not necessarily have occurred upon any specified date, such as May 26. The respondent denied that the union membership and activity of its striking employees influenced it in its dealings with strikers who were permitted to return to the plant or to those to whom it denied reinstatement. The activities of the respondent at the termination of the strike detailed below, refute these denials. In the first place the respondent solicited resignations from the Union of certain strikers who were permitted to return to the plant. On May 25, the day before the termination of the strike, Max Wil- ner, the president of the respondent, solicited the resignation from the Union and the return, to work of two strikers, Dollman and Rosner. When Dollman informed Wilner that he was obligated to the Union, Wilner replied, "Well, you don't have to worry about your obligations, we will take care of you, and you come back to work." Dollman thereupon told a fellow striker that he intended to return to work the next day. Both Dollman and Rosner were reinstated on May 26. On May 27 Dollman and Rosner both sent their resignations to the Union accompanied by money-order remittances of $62 and $33 respectively to cover their "obligations" to the organ- izations. On May 27, the day the reinstated strikers returned to work, the respondent solicited the resignation from the Union of a returning striker named McEvoy. McEvoy testified without con- tradiction that his resignation from the Union was obtained in the following manner : Mr. Bermont 11 came to me in the afternoon, I should judge it was about 3 o'clock and he told me that the employees who had gotten their jobs back had resigned from the Union. He asked me if I would resign from the Union. I told him I would. He went away and returned a little later with a sheet of paper, which looked like a sheet of paper, had been doubled over. Between the folds a piece of carbon paper had been in- serted. He told me to write out my resignation in my own way. I did and he gave me an envelope which I addressed to the Union. 15 Bermont , we have found in Section III B 1, is a supervisory employee in charge of the respondent's traffic department. HENRY GLASS AND COMPANY 745 I showed him the resignation as I had written it. He took the carbon paper from between the two folds, and he tore it in half. He tore the paper in half and he retained the duplicate of my resignation to the Union. I inserted the original in the envelope, sealed it, and I gave it to Mr. Bermont. He told me that he would send it registered mail, and that when I received the return receipt I was to bring it in to him. I brought him in the return receipt on Tuesday or Wednes- day of the following week. McEvoy testified that his reason for resigning from the Union was his belief that the respondent was antagonistic to the Union and would discriminate against him unless he resigned. Between April 11 and June 3, 14 employees resigned from the Union.1° At least six of the resignations were sent to the Union, as was McEvoy's, by registered mail, return receipt requested. Two of them, in addition to McEvoy's were written on sheets of paper which bore evidence of having been torn in the same manner in which Bermont tore McEvoy's paper. The resignations of at least 14 were written during or after the strike, but in each case after the em- ployees had returned to work and while they were actively in the employ of the respondent. That the respondent was well informed concerning these resignations from the Union, is shown by the fact that at the first hearing counsel for the respondent named individ- ually five employees who had resigned from the Union prior to April 29, and on June 7, filed a supplemental brief with the Board in which he stated, inter alia, that At least eight others (union members) have stated that they have revoked the authority previously granted to, the petitioner to represent them. In the second place the strikers 17 bore the full brunt of the respond- ent's "reorganization." That this was by design and not by accident is shown by the fact, testified to by the respondent's witness, that although the respondent's officers and executives discussed individual strikers during the strike, and decided and marked on a pay roll the names of those who were to be refused reinstatement, they at no time discussed the possibility of eliminating the positions of or of discharging employees then at work in the plant. Furthermore, although the respondent informed the employees who were refused reinstatement that they would be placed upon a "preferential" list and notified as soon as an upturn in business conditions warranted the hiring of new employees, no striker was recalled until shortly prior "At the time of the second hearing at least 2 of these 14 men renewed their applica- tions for membership in the Union " The record is not clear as to the exact number of strikers refused reinstatement. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the second hearing 18 despite the fact that new workers had been employed during and after the strike in both the stock and refolding departments. We are of the opinion that the solicitation of resignations from the Union of strikers who were reinstated and the "reorganization" of the respondent's business, with the consequent refusal of rein- statement of Nugent and Cohan and other strikers, were measures deliberately adopted by the respondent to insure the destruction of the Union's influence in the plant. The respondent did not attempt to solicit resignations from all the returning strikers; it sought to gain its end by addressing itself solely to the elimination of the Union majority in the plant. At the hearing in the representation case on April 29, the Union produced evidence that it represented a majority of the respondent's employees. On June 7, after the activities described above, the respondent stated in its supplemental brief filed with the Board, As a result of these resignations,19 the petitioner represents at best approximately nineteen (19) employees. [Italics supplied.] The purpose of this communication, as stated by the respondent, was to prevent the Board from certifying the Union as collective bargain- ing agent. Nugent testified that Ellis Wilier admitted, when he interviewed Nugent at the termination of the strike, that the respondent's refusal to reinstate him was based upon his (Nugent's) activity during the strike. Cohan testified that Ellis Wilner told him, when refusing him reinstatement, that the respondent could not use him because of his (Cohan's) "activities" and because of his "disloyalty" to the firm. Cohan interpreted these words as referring to his union ac- tivity. Wilner denied that he had referred at that time to Nugent's participation in the strike or to Cohan's "union activity." We are of the opinion, however, that Wilner made the remarks attributed to him and that Nugent's and Cohan's interpretations thereof were correct. We are of the opinion that the respondent refused to reinstate Nugent and Cohan because of their membership in and activity in behalf of the Union. We find that by discriminating against strikers in the reorganiza- tion of its business, and by refusing reinstatement to John Nugent and Henry Cohan at the termination of the strike, the respondent discriminated in regard to the hire and tenure of employment of its 18 Shortly before the hearing three strikers were offered reinstatement In The respondent included in the resignations referred to, two resignations from em- ployment solicited and obtained by the respondent from employees who were refused rein- statement . At least four other employees who were refused reinstatement signed similar resignations. HENRY GLASS AND COMPANY 747 employees, and thereby, and by soliciting resignations from the Union, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Neither Nugent nor Cohan have been recalled. They have not been employed regularly elsewhere since the time of the hearing and they desire reinstatement. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent, set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intinmate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent has refused to bargain collec- tively with the Union. In order to effectuate the policies of the Act, we shall order the respondent, upon request, to bargain collectively with the Union as the exclusive representative of its employees within the unit herein deemed to be appropriate. We have also found that the respondent discriminated against John Nugent and Henry Cohan by refusing said employees reinstatement after the strike of April 11 to May 26, 1938, because of their union membership and activity. We shall therefore order the respondent to reinstate them to their former positions and to make them whole for any loss of pay they may have suffered by reason of said refusals to reinstate, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 20 during said period. 20 By "net earnings" Is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for the dis- crimination against him and the consequent necessity of his seeking employment else- where See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B 440. Monies received for work performed upon Federal, State, county , municipal, or other work-relief projects are not considered as earnings, but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VI. THE PETITION In view of the findings in Section III above as to the appropriate bargaining unit and the designation of the Union by a majority of the respondent's employees in the appropriate bargaining unit as their representative for the purpose of collectively bargaining it is not necessary to consider the petition of the Union for certifi- cation of representatives. Consequently the petition will be dismissed. 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. United Wholesale & Warehouse Employees of New York, Local No. 65, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. The employees of the respondent, including sample carriers, and excluding A. Wilner, G. Hale, all salesmen, and executive and supervisory employees, constitute a unit appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. United Wholesale & Warehouse Employees of New York, Local No. 65, C. I. 0., is the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. 4. By refusing to bargain collectively with United Wholesale & Warehouse Employees of New York, Local No. 65, C. I. 0., as the exclusive representative of all its employees in the above 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 refusing to reinstate Henry Cohan and John Nugent on or about May 26, 1938, to their regular employment, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. 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 prac- tices within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. HENRY GLASS AND COMPANY ORDER 749 Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Henry Glass and Company (New York City), and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Wholesale & Warehouse Employees of New York, Local 65, C. I. 0., as the ex- clusive representative of all its employees, including sample car- riers but excluding A. Wilner, G. Hale, all salesmen, executives, and supervisory employees ; (b) Discouraging membership in United Wholesale & Warehouse Employees of New York, Local 65, C. I. 0., or any other labor or- ganization by discharging or refusing to reinstate its employees, or any of them, or in any other manner discriminating in regard to their hire or tenure of employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities- for the purposes of collective bargaining or other mutual aid 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 United Wholesale & Warehouse Employees of New York, Local 65, C. I. 0., as the exclusive representative of all its employees including sample car- riers but excluding A. Wilner, G. Hale, all salesmen, executives, and supervisory employees in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Offer to John Nugent and Henry Cohan, and to each of them, immediate and full reinstatement to their former or to substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; (c) Make whole John Nugent and Henry Cohan, and each of them, for any loss of pay they may have suffered by reason of the re- spondent's refusal to reinstate them to their former positions on or about May 26, 1938, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from the refusal of reinstatement to the date of the re- spondent's offer of reinstatement pursuant to this Order, less his net earnings during said period; deducting, however, from the 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount otherwise due him monies received by him during said period for work performed upon Federal , State, county , municipal, and other work-relief projects , and pay over the amount so de- ducted to the appropriate fiscal agency of the Federal , State, county, municipal, or other government or governments which supplied the funds for such work-relief projects; (d) Post immediately and keep posted for a period of at least sixty (60) consecutive days from the date of posting , in conspicuous places throughout its plant notices stating that the respondent will cease and desist in the manner set forth in paragraph 1 and will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; that the respondent's employees are free to become and remain members of United Wholesale & Warehouse Employees of New York, Local 65, C. I. 0.; and that the respondent will not dis- criminate against any employee because of membership in that organization ; (e) Notify the Regional Director for the Second Region in writ- ing within ten (10 ) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the petition for investigation and certification of representatives filed by United Wholesale & Warehouse Employees of New York, Local 65, C. I . 0., be, and it hereby is , dismissed. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.