The Federbush Co., Inc.

In the Matter of THE FEDERBUSH Co., INC. and UNITED PAPER WORKERS, LOCAL INDUSTRIAL' UNION No. 292, AFFILIATED WITH THE C. I. O. Case No. C-1538.Decided.June 18, 1940 Loose-Leaf Device Manufacturing Industry-Interference, restraint, and coercion: making anti-union statements ; disparaging the leaders of the Union and their motives ; threatening to close the plant part of the year if the employees organized ; watching and following the union organizers, and by otherwise inter- fering with their efforts to contact the employees-Unit Appropriate for Collective Bargaining: production, maintenance, shipping, ,and receiving employees, includ- ing working foremen who do not have authority to hire and discharge, but ex- cluding clerical, sales, and supervisory employees ; integrated nature of business ; organization of Union ; distinction between "essential" and "non-essential" de- partments rejected-Representatives: proof of choice : authorization cards desig- nating Union as bargaining representative-Collective Bargaining: refusal to recognize Union as exclusive representative of employees in the appropriate unit; questioning the appropriateness of bargaining unit fixed by the-Union no defense when not done in good faith ; questioning the appropriateness of bargaining unit fixed by the Union for the purpose'of delaying and avoiding collective bargaining; remedial order : bargain, upon request ; order based on majority on date of refusal to bargain ; defections, if any, from ranks of Union not recognized as valid since they resulted from the respondent's unfair labor practices (Leiserson, Con- curring) employees organized themselves in a bargaining unit which included production, maintenance, shipping, and receiving employees, and none of the employees having organized in any other unit, it was the duty of the employer to accept the employees' unit as appropriate ; such determination by the employees is binding upon the Board as,well as the employer. Mr. D. R. Dimick, for the Board. Mr. Jacob E. Hurwitz, of New York City, for the respondent. Mr. Moses C. Weinman and Mr. Charles Weinman, of New York City, for the Union. Mr. Ray Johnson, of counsel to the Board. DECISION AND ORDER- STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Paper Workers, Local Industrial Union No. 292,1 affiliated with the C. I. 0., I Incorrectly designated In the complaint as United Paper Workers, Local Industrial. Union #292, affiliated with the C. I. 0. 24 N. L. R. B., No. 88. .829 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated January 31, 1940, against The Federbush Co., Inc.,z. New York City, herein called the respondent, alleging: that the respondent-ha d -, engaged in and was. engaging in unfair labor practices affecting commerce,•within.the meaning of Sec- tion 8 (1) and (5) and Section.2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the com- plaint, accompanied by notice of hearing, was duly served upon the respondent and the Union. ' In respectto the unfair labor 'practices, the complaint alleged in 'substance (1) that all production, maintenance, shipping, and receiv- ing employees employed in the respondent's New York City plant; including working foremen who do not have authority to hire and discharge; but excluding clerical, sales,. and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining; (2) that on October 24, 1939, and at all times thereafter, a "majority of the respondent's employees in said unit had designated the Union as their exclusive representative for the purposes of collective bargaining; (3) that on October 27, 1939, and at all times thereafter, the respondent refused to bargain with the Union as the exclusive representative of employees in the appropriate unit; (4) that on October 27, 1939, as a result of the respondent's- unfair labor practices, 46 of the 48 em= ployees in the appropriate unit went on strike; and (5) that by the foregoing, and by other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. ,On February 12, 1940, the respondent filed an answer to the com- plaint denying that the unit alleged in the complaint was appropriate and denying that it 'had engaged in any unfair labor practices. _ Pursuant to notice, a hearing was held on February 15, .19, 20, 21, and.23, 1940, at New York City, before Guy Van Schaick, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all- parties. At the commencement of the hearing, the respondent moved to dismiss the complaint on the ground of variance between the description of the bargaining unit claimed to be appropriate in a peti- tion for certification filed by the Union -dated October 20,- 1939, .and the bargaining: unit alleged to be appropriate in the complaint; and on the ground that said petition had not been withdrawn on October 2 Incorrectly designated in the complaint as The Federbush Company, Inc.. THE FEDERBUSH CO,, INC. 531. 27, 1939, the date *of the refusal to bargain alleged in. the complaint.3 The Trial Examiner denied the motion initially, but subsequently re- served ruling on it. On- February -19, .1940, the respondent moved to strike from the complaint all allegations charging it with a violation of Section 8 (1) of'the Act. and to dismiss the' complaint. The Trial Examiner denied the motion.. At,the close of the Board's ' case, and again at the close of, the hearing, the respondent moved to dismiss the complaint and to strike therefrom all allegations relating to a violation of Section 8. (5) of the Act. The Trial Examiner reserved ruling on these motions. In his Intermediate Report the Trial Examiner'denied these motions. The rulings are hereby affirmed. During the hearing, counsel for the Board moved to conform the. pleadings to the proof. The motion was granted without objection. During the course of the hearing, the Trial Examiner made several rulings on other.motions and objections to the -admission of evidence. The Board has reviewed' all the rulings of the Trial Examiner and finds that no prejudicial errors were committed: The rulings are hereby affirmed. On March 15, 1940, the respondent filed a brief with.the Trial Examiner.. On April 13, 1940, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all parties, finding that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) arid' (5) and Section 2 (6) and (7) of the Act. He recommended' that the respondent cease and desist from engaging in unfair labor practices, and that, upon request, it bargain collectively with the Union'. There= after the -respondent filed exceptions to the Intermediate Report, a brief in support thereof, and a 'request for oral argument before the Board. Pursuant to notice, a hearing was held before the Board in Wash- ington, D. C., on May 16,1939, for the purpose of, oral argument. The respondent was represented by counsel and presented its argument. The Union did not appear. On June 8, 1940, the respondent filed,an additional brief in opposition to the Intermediate Report. The Board has considered the exceptions to the Intermediate Report, and the respondent's briefs and oral argument in support thereof, and,' in so far as the exceptions are inconsistent with the findings, conclu- sions, and order set forth below, finds no merit in them. On 'October 24, 1939, the Union, acting pursuant to Section 9 (c) of the Act, Sled with the' Regional Director for the Second Region a petition requesting an investigation and certification of representatives, of the employees of the "Federbush.,Loose, Leaf & Binder Co., Inc." ' (Case No. II-R-1507.) On November 21,.1939, the Union filed its request to withdraw the petition, and, on December 1, 1939, by leave of .the. Board, the petition was withdrawn,and the case was closed. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following:-, FINDINGS' OF FACT 1. THE BUSINESS OF THE RESPONDENT The Federbush Co., Inc., a New York Corporation, has its prin- cipal office and place-of business in New York City, where it is engaged in the manufacture, sale, and distribution of loose-leaf devices and related products. The,respondent employs approximately 70 persons. During 1939 the respondent purchased raw materials consisting of leather, imitation leather, canvas, paper, board, cloth, and metals, valued at approximately $123,000, approximately 60 per cent of which were shipped to the respondent from points outside the State of New York. During the same period the respondent manufactured goods valued at approximately $313,000, approximately 50 per cent of which were shipped to points outside the State of New York. The respondent' admits that it is engaged in interstate commerce within'the meaning of the Act. H. THE ORGANIZATION INVOLVED United Paper Workers, Local Industrial Union No. 292, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to its membership all production , maintenance, shipping, and receiving employees employed in the respondent's New York City plant, including working foremen who do not have the authority to hire and discharge , but. excluding clerical, sales, and supervisory employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union first began to organize the respondent's employees in May 1939. In June 1939 Nathaniel Federbush, foreman of the stamp- ing department, approached Anthony Napoli, one of the employees, and stated, "You know, once before they tried to unionize this place. It was a year back and it didn't work." Federbush then asked Napoli if he had signed an application for membership in the Union. When Napoli replied in the negative, Federbush admonished him, "Well, don't you sign. They are just a bunch of racketeers. They are trying to collect dues, charge you $2.00 a month and it won't get you nowhere in the end. They won't secure you a job." Napoli then informed Federbush that he had signed an application for membership in the Union and permitted Federbush to examine his card. Federbush then asserted that the respondent was operating on a very small margin of THE FEDERBUSH CO., INC. 833, profit and stated that if the plant was organized the respondent would be able to accept only the most profitable orders and hence would be unable to operate for more than 6 months a year. Federbush con- cluded, "It really don't pay for you to join a union. You won't gain anything by it and you will have everything to lose." In August 1939 Bill Gramacy, a union organizer, and Frank Grasso,' the union manager,-went to the plant to meet the workers. Upon ar- riving at the plant, Grasso and Gramacy saw Nathaniel Federbush standing in the doorway. They moved about a block away from the plant but were followed by Federbush. Gramacy and Grasso moved five or six times in an effort to avoid Federbush, but Federbush fol- lowed them each time. In September 1939 Gramacy and Joseph Rogovsky, vice president of the Union, went to the plant about 5 p. in. to meet the employees. While Gramacy was standing on the steps of the building in which the respondent occupies the sixth and seventh floors'in order to get out of the rain, Nathaniel Federbush pushed him off the steps and said, "If you want to organize go on the other side of, the street." About 2 min utes later, the elevator operator ordered them to leave the building, stating that Federbush had instructed him to "chase" them away. On October 23, 1939, about 4 days prior to the strike, Irving Feder- bush, the secretary of the respondent, approached Napoli and, refer- ring to the Union, stated, "I heard that you are the leader." Napoli, denied that he was the leader of the Union, but admitted that he was a member of the shop committee. Federbush replied, "What's the mat- ter? Haven't you been treated well? . . . You got a, raise . . . Then why are you turning against us? Why are you turning against us by joining a union?" When Napoli replied that lie thought it advisable to join the Union because of certain "things" that had occurred in the plant, Federbush replied, "Well, why not come into the office and see if we can straighten it out and talk it over." Napoli, however, de- clined the invitation, stating that he would not discuss his grievances unless the union officials and the shop committee were present. Nathaniel Federbush did not take the stand to deny any of the fore- going statements or activities attributed to him. While Irving Fed- erbush was a witness in this proceeding, he did not deny the statements attributed to him by Napoli which are recited above. We find- that the respondent, by making anti-union statements to its employees, by disparaging the leaders of the Union and their motives, by threatening to close the plant part of the year if the employees organized, by watching and following the union organizers, and by otherwise interfering with their efforts to.contact the employees, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section ,7 of the Act. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD T3. "The refusal to bargain collectivelq 1. The appropriate unit The complaint alleges that.the appropriate unit consists of all pro- duction, maintenance, shipping, and receiving employees employed in the respondent's New York City plant, including working foremen who do not- have the authority to hire and discharge, but excluding clerical, sales, and supervisory employees. On October 27, 1939, there were 50 non-supervisory employees in this unit' The respondent con- tends that only those employees in the binding, cutting, stamping, .punching, and assembling departments, aggregating 32 in all, should be included in the unit. The respondent would exclude the employees in the metal, printing, and index departments from the appropriate knit because these are _"incidental" or "non-essential" departments. The respondent also desires to exclude employees in the. maintenance; shipping, and receiving departments f rom the unit, contending that the work performed in these departments is not related to the work performed by the production employees. The, operations of all departments of the respondent's business. are closely interrelated; they are substantially as follows: The raw ma terials first come to the receiving. department. From there, with the exception of the metals, they go to the cutting department, where they are cut to measure according to the shop orders, and • then sent to the bindery proper, where they are made up. At the same time, the metal parts, which are first degreased in the laundry, are being made up in the machine shop and are sent to the binding department, or, some- times, directly to the assembly department. The covers are sometimes sent to the stamping department where the lettering is put on. The necessary printing- is done in the printing department. Indexes, either leather or celluloid, are made in the index department.. The punching department is operated in conjunction with the assembly department, where the various parts are assembled into the complete product, which is then sent to the shipping room, where the products are packed into boxes or cartons and routed to their destination. 'In most instances, every department contributes to the production of the finished product. The principal departments in •a loose-leaf device manufacturing 'business are cutting, binding, stamping, assembling, punching, re- ceiving, shipping, and maintenance departments. The incidental de- * The Union claimed there were 51, including George Pelletier , 'a Working foreman in the metal department. While the testimony is in conflict as to Pelletier 's power to hire and discharge, the testimony of Irving Federbush that he.had such,power is entitled to the greater weight. Furthermore, Pelletier is listed on the pay'roll . as' a supervisory .em- ployee and in the 'same -group with the executive' officers of 'the. respondent. ' We find, as did the Trial Examiner ; that Pelletier has' the authority to hire ' and discharge, and should be excluded from the appropriate unit.. THE F'EDERBUSH CO., INC.. 835 partments are the index; metal, printing, and. laundry departments.- Some concerns engaged in- this business obtain the materials and services of these latter departments .outside, but the respondent car- ries them all as an integral whole. While some of these auxiliary departments were installed years after the respondent first began its loose-leaf bindery business, when once installed they became a part of the respondent's business and of the respondent's plant. .Irving Federbush, secretary of the respondent, testified that the respondent, having once added these departments, still retains them because to give them up would result in great loss. Wages, hours, and working conditions are substantially the same throughout the respondent's plant, except that the employees in the maintenance, shipping, and receiving departments are paid on a weekly basis. There is some interchange of employees between vari- ous departments, including those the respondent wishes to include in the unit and those it wishes to exclude from the unit. The Union organizes on an industrial basis and: has members in all of the de- partments of the respondent's plant. We find that all production, maintenance, shipping, and receiving employees employed at the respondent's New York City plant, in- cluding working foremen who do not have the authority to hire and discharge, but excluding clerical, sales, and supervisory employees, at all times material herein constituted and that they now constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit On October 20, 1939; the Union had obtained signed cards, au- thorizing the Union to.represent the signers for the purposes of collective bargaining, from about 29 employees in the 'appropriate unit. It had obtained 38 of such authorizations, by October 24, 47. by October' 27, and 48 by October 31. We find that on October 20, 1939, and at all times thereafter; the Union was the duly designated representative of the majority of the employees in the appropriate unit, and that by virtue of Section 9 (a) of the Act it was the exclusive representative, of all the em- ployees in, such unit for the purposes of collective' bargaining in respect to rates of pay, wages, hours of employment, and other con- ditions of employment. 836 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD 3. The refusal to bargain On October 20, 1939, Joseph Rogovsky, vice president of the Union, and Ewald Sandner, its field representative, met in a conference with Irving Federbush at the respondent's office. At the beginning of the conference Rogovsky stated that the Union represented a majority. of the "factory" employees and desired to bargain ' with the respondent as the representative of these employees. Federbush asked for proof of majority and inquired what the demands of the Union were. Rogovsky replied that the union authorization cards could not be shown to an employer but he gave Federbush the names of the five,members of the shop committee. According to Rogovsky, Federbush then stated, "I knew that you had some meetings in the past, and I do know that you represent the majority of my em- ployees." While Federbush denied that he had admitted that the Union represented a majority, we find, in the light of subsequent events and the findings of the Trial Examiner, that he in fact did so. Rogovsky.then stated that before he could present the demands of the Union, before negotiations could commence, Federbush would have to concede the Union's right to bargain for all the production employees and the members of the shop committee would have to be present. Federbush said that he was only one member of the com- pany and in order to negotiate a contract he would have to have the other members of the management present. He promised to arrange a meeting for the next Monday or Tuesday, at the latest, to negotiate a contract. On October 24, 1939, the representatives of the Union and the respondent met in a second, conference. At the beginning of the conference, Rogovsky stated that the Union represented a majority of the respondent's employees and had met for the purpose of negoti= ating a contract for the "entire shop." Hurwitz, the respondent's attorney, questioned the Union's majority. The respondent then objected to the unit claimed by the Union, contending that only the cutting, binding, stamping, assembling, and punching departments should be included in the unit, and insisted that the Union prove its majority. When the respondent insisted upon the Union prov- ing its majority, Grasso replied that a "certification" could be ob- tained from the Board in a day or two.5 Hurwitz remarked that he thought Grasso was too. optimistic. Grasso then telephoned the Regional Office of the Board and arranged for a conference to be held at the offices of the Board the following morning. 'Grasso testified that by a "certification " he meant that the majority status of the Union could be established 'on a tally . of the Union's cards by a representative of the Board. THE FEDERBUSH CO., INC. 837 • On October 25 the representatives of the Union and Jacob E. Hur- witz, the respondent's attorney, met in a conference at the Regional Office of the Board. When Grasso stated he had the Union's cards there for the purpose of conducting a tally, Hurwitz replied that a tally was "too fast" for the respondent, and that he saw no reason why some of the workers such as those in the machine shop and the printing department should be members of the United Paper Workers, empha- sizing the word "Paper." When Grasso explained that the Union organized on an industrial basis, Hurwitz replied, "It is not that we don't like the C. I. O. or this local we don't like organization at all ... In this case, a union is bad medicine, a bad medicine that my client does not wish to take and if we are compelled to take it the least we could do is to take it very slow. So we are going to do nothing to expedite matters. We don't like the union, we don't make any bones about it. If we are going to do anything at all, it is because we are compelled to do it ..." g At this conference, however, the respondent conceded the majority status of the Union and agreed to waive an election. At a luncheon the same day, Hurwitz stated to Grasso and Rogovsky that a tally and an election were "a lot of tommyrot," and that if the Union would disclose its demands, neither a tally nor an election would be necessary. Hurwitz continued, "We use the Labor Board in order to delay. It is a lot of unnecessary red.tape that allows us to stall.. But if we agree to negotiate, why, we will dispense with all of that and we will call you in and you can come in and we can negotiate the con- tract." Hurwitz stated further that if the Union would disclose its- demands that he would use them as a "springboard" in an attempt to persuade the respondent to negotiate with the Union. Grasso then stilted the Union's demands to Hurwitz.? On the evening of October 26 about 40 employees attended a union meeting and voted to strike the. following day, provided, however, that a further attempt be first made to negotiate with the respondent. The same evening Grasso informed Irving Federbush of the vote which had been taken. Federbush stated that he would negotiate with the Union,. 6 Both Hurwitz and Irving Federbush testified that Hurwitz was employed only in as advisory capacity, without power to bind the respondent. We find, however, as did the Trial Examiner, that Hurwitz had all the usual powers of an agent in similar cases and' that notice to him and statements made by him in transactions with the Union are properly imputable to the respondent. 7 Hurwitz, testified that. the demands were given to him in strict confidence and that he never communicated them to the respondent. Grasso testified that shortly afterwards Hurwitz. stated that he had spoken to the respondent and that the respondent had re- fused to negotiate with the Union. Grasso understood from this statement that Hur- witz had communicated the demands to the respondent. Since we find below that the respondent- refused to recognize the Union as the collective bargaining representative of its employees in the appropriate unit, it is not necessary to determine whether or not the Union's demands were ever communicated to the respondent. 283035-42-vol. 24-54 • 838 DECISIONS OF NATIONAL LABOR.: RELATIONS BOARD but that he first wanted to confer with Hurwitz. A.few hours later Hurwitz telephoned Grasso and stated that the respondent would negotiate with the Union. Grasso understood from Hurwitz's state- ment that the respondent had abandoned its claim-for a more limited .bargaining unit and would bargain with the Union as the representa- tive of the employees in the unit which the Union contended was ap- propriate. It is clear from the record that Hurwitz knew that Grasso so understood. At the beginning of the conference the following day, Hurwitz stated that the Union should not be "impatient," and con- tinued, "I am sorry to say, and I don't want you to feel too bad about it; .I know you have come here anticipating something else, but I don't want you to feel bitter about it. As for ourselves, the position of the company remains the same as it was before." When Hurwitz was asked to explain his statement, he replied that the. respondent was assuming its original position of demanding that there be a. hearing and a certification by the Board before it would bargain with the Union. About 3 p. m. the same day a strike Was called. . All the employees in the unit alleged to be appropriate, with but two excep- tions, joined the strikes During the period of the strike, the respond- ent's plant was picketed daily and strike benefits were paid to about 43 persons. On November 2 the representatives of the respondent and the Union met in a second conference at the Regional Office of the Board. During this conference the respondent offered to negotiate with the Union as the representative of 'the employees in the unit . which the respondent contended was appropriate, but the Union rejected this proposal.9 On December 7 the representatives of the respondent and the Union again met in a conference at' the Regional Office- of the Board. At this conference the respondent proposed a bargaining unit compris- ing the binding; cutting, stamping, punching, and assembling depart- ments, aga egating 32 employees, and agreed to negotiate with the Union as the representative of the employees in. this unit provided the strike be 'called off. The Union. rejected this proposal.. It was then proposed that the Union negotiate for the employees in the unit which the respondent contended was, appropriate and that the ques- tion of what constituted the appropriate bargaining unit later be submitted to arbitration. 'The respondent rejected this proposal, stating that it was assuming its -original position of demanding that there. be a hearing and certification by the Board.,- . On January 18, 1940, the strike was terminated and all the'employees who-,desired reinstatement were reinstated. 8 These two employees, joined the strike the following week for ' l day. • 8 Although there is no direct evidence to show that the Union rejected this proposal, it , is clear from the record that the proposal was in fact rejected by the Union. - THE FEDERBT SH CO., INC. 839 On January 31, 1940,.after the termination of the strike, Graniacy went to the plant to speak to the workers as they left for the day. Max Federbush, a supervisor in the order department, approached Gramacy and said, "Why don't you get the hell out of here and leave the workers alone? They don't want' to have anything to do with the Union or you.'-' When Gramacy replied that he came to the plant at the request of the workers, Federbush stated, "Well, you know the union is lost. Even if the Labor Board will rule in your favor, we will bargain and we will keep on bargaining with the Union forever. We don't have to give them anything and, after all, they can spare a few hours once in a while to bargain." 10 Conclusions It is undisputed that, although the respondent has conferred with the Union, it has never engaged in collective bargaining. The re- sponderit seeks to justify its failure to bargain on the ground that it had a reasonable doubt as to the appropriate bargaining unit. It concedes, however, that if the issue as to the appropriateness of the bargaining unit-was not raised in -good faith; the existence of such an issue does not- excuse its refusal to bargain.'1 That the respondent contested the appropriateness of the unit fixed by the Union in bad faith, that is, for reasons other than an honest and genuine doubt as to its appropriateness, is amply demonstrated by the record. The unit proposed by the respondent is irrational. It seeks to exclude from the unit established by the self-organization of its em- ployees certain departments of its plant ,on the ground that they are "non-essential," and certain other departments because they are un- related to production processes. We have found that the respondent's business was operated as an integrated unit. We think that no reasonable distinction can be made between the various departments- of the business. But even if a distinction can be made between "essential" and "non-essential" departments, we think such a distinc- tion is plainly immaterial. The respondent might have as easily, and with as much justification, selected any, group of its employees, on. the basis of some arbitrary criterion; and contended that they con- stituted the appropriate bargaining unit. During oral argument before the Board, counsel for the respondent admitted that. the re- spondent's position was not supported by precedent. Furthermore, the respondent has advanced no,practical reasons related to the con- 10 The evidence is in conflict as'to whether Max'Federbush . has authority to hire and discharge.', 'Since, however, it is clear ,.from -all the evidence that 'he serves in a: super- visory capacity, we need not'resolvethis conflict. '? In its ' brief, the respondent stated,. "The deterinination of an appropriate unit must, therefore, precede a finding of violation under Section 8 (5) except in cases of complete absence of good faith on the part of the Respondent." 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD venience of bargaining to show why the metal, printing, index, maintenance, shipping, and receiving departments should not be included in the unit. In so far as the respondent's contention with respect to the unit. is based on a desire to exclude printers and metal workers from, bargaining through- a "Paper Workers Union ," it is an attempt by the respondent to supplant its judgment for that of its employees as to the form of their organization , although the Act guarantees to employees the right of self -organization free from interference by the employer. Throughout the entire period of negotiations, the. respondent never proposed the establishment of more than one bar- gaining unit, but suggested simply that certain employees be ex- cluded from . the. unit, and, therefore, from representation for collective bargaining. This position was adopted in the face of the fact that 16 of the 18 employees the respondent sought to exclude from the. unit. had designated the Union as their representative for the purpose of collective bargaining. It should be noted, moreover, that on December 7 the respondent rejected a proposal contemplating the commencement of negotiations on the basis of the smaller unit proposed by the respondent and the submission of the question of what constituted the appropriate unit to arbitration. . In view of the foregoing, we find it impossible to believe that the respondent contested the appropriateness of the unit fixed by the Union in good faith. Our conclusion is strengthened , and the reason for the respondent's position is explained, by other evidence in the record. It is clear from the record that the respondent raised the question of the appropriateness of the bargaining unit in order to delay, and perhaps thereby to avoid altogether, collective bargaining with the Union. On October 25 Hurwitz informed the union representatives that proof of majority through a . tally of the Union's authorization cards would be "too fast" for the respondent, that a union was "bad medicine ; a bad medicine that my client ' does not wish to take and if we are compelled to take it the best we could do is, to take it very slow." At a luncheon meeting with the Union 's representatives on. the same day , Hurwitz stated , "We use the Labor Board in order to delay. It is a lot of unnecessary red tape that allows us to stall."' He further stated that a tally and an election were "a lot of tommy- rot." Furthermore, as noted above, on December 7 the respondent rejected the proposal to negotiate with the Union as the representa- tive . of the employees in the unit proposed by the respondent and to. submit the question of what constituted the appropriate bargaining unit to arbitration. The respondent's refusal to arbitrate .the question of whether certain departments should- be in the unit can only , be. THE FEDERBUSH CO., INC. 841 ;viewed as another expression of, its unalterable desire to impede or prevent collective bargaining. We find that on October 27, 1939, and at all times thereafter, the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit with respect to rates of pay, wages, hours of employment, and other con- ,ditions of employment, and that the respondent has thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The concurring opinion would rest the decision solely upon the ground that "the employees have organized themselves" ina specified bargaining unit, "none of the employees having. organized in any other unit," and therefore such unit "is binding upon the employer and the Board alike." It is objected that the majority opinion "considers the question of the appropriate bargaining unit as if it were open and unsettled until the Board made its determination," and that it is not "permissible to hold the employer accountable for refusing to bargain collectively in October 1939, with representatives of a bargaining unit that is not found by the Board to be appropriate until June 1940." We have already stated elsewhere our reasons for holding that, while it is a factor of great importance, the Board is not necessarily bound in its determination of the. appropriate bargaining unit by the circum- stance that a unit has been agreed upon between employer and em- ployee in a prior exclusive bargaining contract.12 A fortiori the Board is not necessarily bound where there is no agreement on the part of the employer but merely a course of organization by the Union. As a matter of fact the Board has decided a number of cases, in which the author of the concurring opinion has participated with approval, wherein the Board has expressly held a claimed unit 'to : be inappro- priate despite the fact that "the employees have organized themselves" in such unit and "none of the employees (have) organized in any other unit." 13 12 Matter of American Can Co. and Engineers Local No . 30 at al., 13 N. L. R. B. 1252; Matter of Clyde Mallory Lines and Industrial Union of Marine & Shipbuilding Workers of America, Local No. 22, 15 N. L. R. B. 1008. 'Matter of Rembrandt Lamp Corporation and Metal Polishers, Buffers, Platers and Helpers International Union, Local No.'6, Chicago; Illinois, affiliated with the American Federation of Labor, 13 N. L. R. B. 9455; Matter of Quaker Oats Company and United Cereal Workers, Local No. 633 (C. 1. 0.), 24 N. L. R. B. 589; Matter of Harker-Beau- man & Company and International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers, Local 8JJ,,, affiliated with the A. F. of L., 24 N. L. R. B. 777. .The same result was reached, and the same rationale employed, although more than one union was in- volved, in Matter of Climam Machinery Company and Metal Polishers, Buffers, Platers and Helpers, Local Union No. 171, affiliated with the A. F. of L., 14 N. L. R. B. 252; Mat- ter of S. Karpen & Bros. and United Furniture Workers of America, Local No. 5'6, C. 1. 0., 14 N. L. R. B. 465; Matter of Koppers Company-Minnesota Division and International Union of Operating Engineers, Local No. 36 (A. F. L.), 14 N. L. R. B. 1148. The New York State Labor Relations.Board has- held a claimed unit to be inappropriate despite the fact that the employees had organized themselves in such unit, and none of them 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor. do we consider well taken' the: objection, that the majority opinion treats the appropriate unit question'as "open'and unsettled" until the Board makes its determination. . Whatever the reasons which lead, a majority of the. Board to-find .a certain unit appropriate, the fact' is that in every case arising under Section 8 (5) the issue of appropriate unit is "open and unsettled,", in the sense it is open and unsettled here, until determined by the Board and, if review is sought, affirmed by the courts 14 In this'respect the concurring opinion stands upon precisely the same footing as. the prevailing opinion. Indeed, except upon some principle of res adjudicata,'which • is not here in- volved, it is'obviously a legal impossibility for an essential issue of a case to be adjudicated prior to the origin of the case itself: The concurring opinion further argues that if the Board "is not bound by the bargaining. unit as determined by the employees them- selves" then "it is not reasonable to expect the employer to know in advance what unit the Board will later find appropriate." It does • not follow, however, that an employer can be apprised in advance of had organized in any other unit. Matter of H. L. Green Co., Inc. and Department Store Employees Union, Local #11250, U. W. R. E. A., C. 1. 0 ., Case No. SE-3580 , Decision No. 653. Prior to Mr. Leiserson 's appointment as a member of the Board , the ,Board had decided several cases in line with the Decisions above cited ; see, for example, Matter of Novelty Steam Boiler Works and' Local 101, Welders, Burners, Apprentices, A. F. of L:, 7 N. L. R. B. 969; Matter of Tovrea Packing Company, a corporation and Amalgamated Meat, Cutters and Butcher Workmen of North America, Local No. 313, 12 N. L. R. B. 1063; see also Matter of El Paso Electric Company, a Corporation and Local Union 585, •Inter- national Brotherhood of Electrical Workers et al., 13 N. L. R. B. 213; Matter of Caldwell Lawnmower Company and International Association of Machinists , Lodge No. 757, affili- ated with the American Federation of Labor, 14 N. L. R., B. 38. In many other cases the Board, with Mr. Leiserson participating with approval, has included within a unit categories of employees which the only union participating desired excluded ; see, for example, Matter of Kansas Milling Company and Flour, Feed, Seed, Cereal & Elevator Workers Union, No. 20991, A. F. of'L., 15 N. L. R. B. 71 ( working supervisors ) ; Matter of B. & B. Shoe Company and United Shoe Workers of America, Local 48, affiliated with the Congress of Industrial Organizations , 15 N. L. R. B. 774 ( order pickers ) ; Matter of Stonewall Cotton Mills , Incorporated and Textile Workers Federal Labor Union, Local 21723, A. F. of L., 16 N. L. It. B. 483 ( office porter, mill carpenter ) ; Matter of The Western Union Telegraph Company and Commercial Telegraphers Union, Indpls. Local #7, Western Union Div. #2, off. with A. •F+. of L., 17 N. L. R. B. 683' (plant employees included in traffic and commercial unit; supervisory and confidential employees without authority to hire or discharge also included) ; Matter of Mack Wenzel etc. and Interna- tional Association of Machinists, District No. 8, affiliated with the American Federation of Labor, 20 N. L. R. B. 707 (general utility employee) ; Matter of Miller Cereal Mills and Federal Labor Union No. 21576 Cereal, Flour, Feed and Grain Elevator Workers, A. F. of L., 22 N. L. R. B . 988 (office janitor ) ; Matter of Kalamazoo Paper Company and International Brotherhood of Firemen and Oilers (A. F. of L.), 23 N. L. R. B. 76 (filter- plant operator). 14 Even where the Board has determined the appropriate unit in a prior certification proceeding under Section 9 of the Act, that determination is not res adjudicate in a sub- sequent proceeding arising under Section Matter of Pacific Greyhound Lines and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America ' et al., 9 N. L. R. B. 557, 573-574; Matter of Pacific Greyhound Lines and Brotherhood of Railroad Trainmen, 22 N. L. R. B. 111 ; Matter of American-Hawaiian Steamship Company, a corporation and Gatemen, Watchmen •& Miscellaneous Waterfront Workers Union, Local 38-124, International Longshoremen's Association, 10 N. L. R. B. 1355 ; Matter of Pittsburgh Plate Glass Company and. Federation of Flat Glass Workers at America, affiliated with C. 1. 0., 15 N. L. R. B. 515. THE FEDERBUSH CO., INC. 843 the appropriate uliit only if the Board considers itself bound by the unit "as determined by .the employees ,themselves." Other rules for- determining the bargaining -unit, may result in the same degree of,: or. greater, certainty15 In any event we need . not consider here the em- player's obligation to bargain collectively under Section 8 (5). where he is in bona fide -doubt as to what the appropriate bargaining unit should be; In the instant case the record is clear that the respondent entertained no real doubt as to ithe appropriate unit but was raising a fictitious issue for the purpose of evading its obligation to, bargain collectively as. required by.the Act. IV. THE EFFECT OF THE UNFAI R 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, havei a close, intimate , and substantial rela- tion to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY. Having found that the respondent has engaged iii' certain unfair labor practices , we shall order it to cease and desist from such prac- tices, and,- further, to take certain affirmative action which we deem necessary to effectuate' the policies of the Act. We have found that 'the respondent has refused to bargain col- lectively with the Union as the exclusive representative of its em- .ployees within, an appropriate unit. We shall, therefore , order the respondent, upon request, to bargain ; collectively with the 'Union as such representative . The respondent contends, however, that such an order is no longer appropriate, since the record shows that the Union no longer represents a^ majority of the employees in the ap- . propriate unit. - We find this contention to be without merit. The defections *from the ranks of the Union , if any, are. the direct result of the respondent's unlawful refusal to bargain with the Union. ' We do.not, therefore,. recognize the validity of such defections. To do so would be to.permit the respondent to evade its duty to .bargain with the Union because of the dissipation of its majority resulting from other of the respondents unfair labor practices ." Apart from 15 Thus , cases may frequently arise where 'the desire of "the employees themselves" is by no means. clear . Moreover , as pointed out above , none of the members of the'Board adheres under all , circumstances to the rule here advanced in the concurring opinion- that the desires of the employees themselves should in all cases be controlling. 10 The respondent bases its contention upon the decision of the Second Circuit Court of Appeals in N. L. R. B. v. National Licorice Company , 104 F. ( 2d) 655, where the Court modified the Board 's Order in ' Matter of National Licorice Company and Bakery 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this, we hold that, in order to effectuate the policies of the Act, the respondent's refusal to bargain must be remedied by an order,to bar- gain collectively based on the majority obtaining on October 27, 1939, when the respondent first refused to bargain with the.Union.Y7, Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. United Paper Workers, Local Industrial Union No. 292, affili- ated with the C. I. 0:, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All production, maintenance, shipping, and receiving employees employed at the respondent's New York City plant, including work- ing foremen who do not have the authority to hire and discharge, but excluding clerical, sales , 'and supervisory employees, at all times material herein constituted and they now constitute a unit appropri- ate for the purpose of collective bargaining, within the meaning of Section 9. (b) of the Act. and Confectionery Workers International Union of America, Local Union 1,05, (Treater New York and Vicinity, 7 N. L. R. B . 537, by conditioning the respondent's duty to bargain,with the union previously representing a majority of its employees upon the outcome of an elec- tion to be conducted among such employees by the Board . In so doing, the Court stated : The finding of the Board that the union represented the respondent 's workmen, 'necessarily related to July 1937 ; at which time , the union had only just organized the shop. A strike followed in 2 weeks and failed , and then came the company union : we know nothing more . It is now nearly 2 years after the tentative organi- zation of the factory, for it was really only tentative ; the applicants not having yet been accepted ; and our order will be conditional upon the Board 's ascertaining by new election whether the union is now the choice of the majority ; otherwise there is some chance that it may not represent their present wishes. Since a period of only 8 ' months has elapsed since an overwhelming majority of the respondent's employees designated the Union as their collective bargaining representa- tive, and since there is no contention that this majority was in any way dissipated for a period of over 2 months after such designation , we do not think that the Court's decision* in the National, Licorice case is- applicable in the present case . Even if it were applicable, however, in view of our finding that the dissipation , if any, of the Union's majority was caused by the respondent's refusal to bargain , we do not think that it is controlling upon us . N. L. R. B. v. Bradford Dyeing Association ( U. S. A.), decided May 20, . 1940 (310 U. S. 318 ), reversing 106 F. ( 2d) 119 (C. C. A. 1) and enforcing Matter of Bradford Dyeing Association ( U. S. A.) (a Corporation ) and Textile Workers' Organizing Committee of the C. I. 0., 4 N. L. R. B. 604; see also National Labor Rela- tions Board v. Somerset Shoe Company, 111 F. (2d) 681 (C. C. A. 1), enforcing, as modified as to other issues , Matter of Somerset Shoe Company and United Shoe Workers of America, 5 N. L. R. B. 486. 1 Matter of Valley Mould and Iron Corporation and Steel Workers Organizing Com- mittee for Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1029, affiliated with the Congress of Industrial Organizations, 20. N. L. R. B. 211; Matter of Bloomfield Manufacturing Company , a corporation, and Samuel Bloomfield, Harold Bloomfield and Daniel Bloomfield, doing business as Bloomfield Mfg. Co., a partner- ship and Metal Polishers, Buffers, Platers and Helpers International Union, Local #6, affiliated with the American Federation of Labor, 22 N. L. R. B . 83, and cases cited therein. THE FEDERBUSH CO., INC. 845 3. United Paper Worker's, Local Industrial Union No. 292, afili- ated with the C.'I. 0., is and at all times since October 20, 1939, has been 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 Act. . 4. By refusing, on or about October 27, 1939,. and at all times thereafter, to.bargain collectively with United Paper Workers, Local Industrial Union No. 292, affiliated with the C. I. 0., as the exclusive representative of all its employees in such unit, the respondent.has .engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 16. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. . ORDER V 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, The Federbush Co: Inc., New York City, and its officers, agents, successors, and assigns, shall: ' 1. Cease and desist from : (a) Refusing to bargain collectively with United Paper Workers, 'Local Industrial Union No. 292, as the exclusive representative of all production, maintenance, shipping, and receiving employees em- ployed at the_ respondent's New York City plant, including working foremen who do not have the ' authority to hire and ' discharge, but excluding clerical, sales, and supervisory employees; ' (b)' In any other manner interfering with, restraining,, and coerc- ing 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 concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National' Labor Relations Act. ' 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act (a) Upon request, bargain : collectively. with'United Paper Workers, Local Industrial Union No. 292, affiliated with the C. I. 0., as the :846 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive representative of all production, maintenance, shipping, and receiving employees employed at the respondent's New York City plant, including working foremen who do not have the author- ity to hire and discharge, but excluding clerical, sales, and super- visory employees, with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment ; (b) Post immediately in conspicuous places throughout its New York City plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order, and (2) that it will, upon request, bargain collectively with United Paper Workers, Local Industrial Union No. 292, affiliated with the C. I. 0., as the exclusive representative of all production, maintenance, shipping, and receiving employees em- ployed at its New York City plant, including working foremen who do, not have the authority to hire and discharge, but excluding clerical, sales, and supervisory employees; (c) 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. Mr. WM. M. LEIsERsoN, concurring : I agree with the result reached in this case, but I cannot agree with the reasons given for the .decision. It seems tome sufficient to say that the employees organized themselves in a bargaining unit which included production, maintenance, 'shipping, and receiving employees, and none of the employees having organized in any other unit, it was the duty of the employer to accept the employees' unit as appropriate. The opinion of the majority, however, considers the question of the appropriate bargaining unit as if it were. open and unsettled until the Board made its determination. In previous decisions the Board has'repeatedly asserted its authority to change units fixed by employees or by agreement between organizations of employees and their employers."' If the Board is not bound by the bargaining unit as determined by the employees themselves, and if the Board has the authority to modify or change this unit and find another appropriate, then it is not- reasonable to expect the employer to know in advance what is Matter of Clyde-Mallory Lines and Industrial . Union of Marine h Shipbuilding Workers .of America, Local No. 22, 15 N. L. R. B. 1008. THE FEDERBUSH CO., INC. 847 unit the Board will later find appropriate io effectuate the policies of the Act. I am of the opinion that the bargaining unit established by the employees: in the exercise of their right of self-organization is bind- ing upon' the employer and the Board alike, and I would so find. Without so finding,. I do not think it is permissible to, hold the employer accountable for refusing to bargain collectively in October 1939, with representatives of a bargaining unit that is not found by the Board to be ' appropriate until June 1940.