The Sherwin-Williams Co.

In the Matter of THE SHERWIN-WILLIAMS COMPANY and PAINT, VARNISH AND ALLIED PRODUCTS LOCAL UNION No. 1310, BROTHER- HOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-1863.-Decided August 01, 1941 Jurisdiction : paint manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: activities of two employees serving as agents of employer, one of whom was sent to plant in question to find out whether or not the A. F. of L. was organizing there, the other who made a speech during working hours advising employees not to join a labor organiza- tion ; anti-union statements ; disparaging union officials ; posting bulletin when under an affirmative duty to recognize the union as exclusive representa- tive stating that it was "willing to meet and bargain with any organization that claims it represents any of our employees" ; statement by an official offering employees a contract provided it was not "an A. F. of L. contract" ; instituting back-to-work movement following strike caused by its refusal to bargain. Collective Bargaining: majority established by membership cards-refusal to negotiate in good faith: refusal to recognize the union as the exclusive bargaining agent ; refusal to make any counter-proposals or any sincere efforts to find a basis for agreement with the union. Remedial Orders : ordered to bargain collectively. Unit Appropriate for Collective Bargaining : all hourly paid employees and laboratory assistants. Mr. Christopher W. Hoey, for the Board. Jones, Day, Cockley & Reavis, by Mr. Thomas F. Veach and Mr. George D. Bonebrake, of Cleveland, Ohio, for the Company. Mr. Thomas L. Parsonnet, of Newark, N. J., for Local 1310. Mr. Bliss Daffan, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a charge duly filed by Paint, Varnish and Allied Products Local Union No. 1310, Brotherhood of Painters, Decorators and Paperhangers of America, herein called Local 1310, the National 34 N. L. R. B., No. 82. 651 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its com- plaint, dated February 11, 1941, against The Sherwin-Williams Company, Newark, New Jersey, herein called the respondent, alleg- ing that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent and Local 1310. Concerning the unfair labor practices the complaint, as amended at the hearing, alleged in substance, (1) that since December 3, 1939, the respondent kept under surveillance its employees and expressed hostility towards the exercise by its employees of their right to self-organization; (2) that since June 28, 1940, the respondent, by various acts, urged its employees to refrain from becoming or re- maining members, of Local 1310, and deprived its employees of privileges permitted them before they became members of Local 1310; (3) that since July 29, 1940, the respondent refused to bargain collectively with Local 1310 although at all times since July 23, 1940, that organization represented a majority of the employees within an appropriate unit; (4) that because of the respondent's unfair labor practices its employees went on strike from September 16 to October 20, 1940; and (5) that during the strike the respondent offered its employees inducements to cease support of, and to take action to disrupt, Local 1310. On February 24, 1941, the respondent filed its answer to the complaint, denying the jurisdiction of the Board and denying that it had engaged in the unfair labor practices alleged in the complaint. In its answer, the respondent also moved (1) that various portions of the complaint be stricken because of in- definiteness and because the allegations are beyond the scope of the charge; (2) that the complaint in its entirety be dismissed; and (3) that if its motion to dismiss should not be granted, the Board furnish a bill of particulars making more definite the allegations of the complaint. Pursuant to notice, a hearing was held between February 24 and March 7, 1941, inclusive, before C. W. Whittemore, the Trial Ex-- aminer duly designated by the Chief Trial Examiner. The respond- ent, Local 1310, and the Board were represented by counsel and 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 objected to the taking of testimony and renewed the motions set forth- in its THE SHERWIN-WILLIAMS COMPANY 653 answer. The Trial Examiner overruled the objection, and denied the several motions to strike portions of the complaint and to dismiss the complaint in its entirety. The Trial Examiner also denied the motion for a bill of particulars except that he required counsel for the Board to make known the names of the respondent's officers and agents alleged to have engaged in unfair labor practices. On two occasions during the hearing motions by Board counsel to amend the complaint with -respect . to the designation of the appropriate unit were granted by the Trial Examiner without objection by the respondent. At the close of the Board's case the respondent moved to strike various parts of the complaint and renewed all objections and motions which previously had been overruled or denied. The Trial Examiner denied the motions and overruled the objections. At the close of the Board's case and at ,the conclusion of the hearing counsel for the Board moved to amend the complaint to conform to the proof. The Trial Examiner overruled -the respondent's obj ection and granted the motion. During the course of the hearing the Trial Examiner made numerous rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. At the close of the hearing the respondent renewed all motions and objections previously over- ruled and denied. . The Trial Examiner reserved ruling on said motions and objections and disposed of them thereafter in his Intermediate Report, as indicated below. On April 23, 1941, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties. He over- ruled the respondent's motions and objections upon which he had reserved ruling during the hearing and found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from the unfair labor practices so found and take certain affirmative action to effectuate the policies of the Act. On May 16, 1941, the respondent filed exceptions to the Intermediate Report. Pursuant to request therefor by the respondent and notice duly served upon all parties, a hearing was held on June 17, 1941, at Washington, D. C., before the Board, for the purpose of oral argu- ment. The respondent and the Union were represented by counsel who participated in the argument. The Board has considered the exceptions filed by the respondent and, except as they are consistent with the findings, conclusions, and Order set forth below, finds no merit in them. 654 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 respondent is an Ohio corporation with its principal office and place of business in Cleveland, Ohio. It maintains plants and ware- houses in Cleveland and Dayton, Ohio; Chicago, Illinois; Newark, Bound Brook, Gloucester City, and Gibbsboro, New Jersey; Detroit, Michigan; Los Angeles and Oakland, California; Dallas, Texas; Lin- coln, Nebraska; Brooklyn, New York; and Pittsburgh, Pennsylvania. It operates lead and zinc mines at Magdalena, New Mexico. Outside the United States its operates plants in Cuba and Argentina. The respondent ranks as the leading manufacturer in the domestic paint industry. Its products include paints, varnishes, colors, stains, enam- els, lacquers, white lead, litharge and other lead products, titanium, lithopone, dyes, chemicals, linseed oil, dry colors, insecticides, coal-tar products, disinfectants, cleaners, polishes, and related products. These products are distributed through more than 100 warehouses, 44,000 agents and dealers, and about 120 wholly owned retail stores. Impor- tant 100-per cent controlled subsidiaries are : The Lowe Brothers Com- pany, John Lucas and Company, Inc., and Acme White Lead and Color Works. Sales for 1939 had an estimated total value of $89,300,000. At its Newark, New Jersey, plant, with which this proceeding is concerned, the respondent manufactures and processes paint and var- nish. The principal raw materials used at this plant include leaded zinc, white lead, lithopone, mineral spirits, titanium, chemical colors, and earth colors. For the 6 months' period ended January 30, 1941, 4,350,000 pounds of such raw materials were purchased from places outside New Jersey and shipped to the Newark plant. This total was about 80 per cent of all raw materials used at the Newark plant during that period. During the same period the respondent shipped from its Newark plant 900,000 gallons of paint and varnish, amounting to about 75 per cent of all such finished products shipped in this period, to places outside New Jersey. The respondent normally employs about 300 employees at the Newark plant, of whom between 215 and 230 are classified as produc- tion, maintenance, and shipping employees.'. 1 Although the respondent denied that it is engaged in interstate commerce , the findings in Section I herein are based, in substance, upon admissions of the respondent in its answer and upon a stipulation of facts entered into by counsel for the respondent and counsel for the Board. THE SHERWIN-WILLIAMS COMPANY - 655 II. THE ORGANIZATION INVOLVED Paint, Varnish and Allied Products Local Union No. 1310, Brother- hood of Painters, Decorators and Paperhangers of America, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees-of the respondent at its Newark plant. III. THE UNFAIR LABOR PRACTICES A. The chronology of events 1. Events prior to the formation of Local 1310 The complaint alleges that the respondent expressed hostility to- wards the. exercise, by its employees, of their right to self-organiza- tion. In support of these charges, evidence was introduced concern- ing the conduct of Nicholas Moltrum who, in December, was president of a local independent labor organization at the Chicago plant and also head of a "national" organization, comprised of the Chicago local and similar independents at other plants of the respondent. The national body was known as the Paint, Varnish and Allied Products Industrial Union, herein called the PVA. Moltrum had been head of the Chicago local for a number of years. In, 1936 and 1938, during contract negotiations with the PVA, George A. Martin, who was then the respondent's president,2 told Moltrum, according to the uncon- tradicted testimony of Moltrum which we find to be true, as did the Trial Examiner, that the American Federation of Labor would represent his employees "over his dead body." In November 1939, Moltrum was called into the office by Errington, labor relations manager at the Chicago plant, and advised that "there was something going on down at Bound Brook [Bound Brook, New Jersey, plant of the respondent] some trouble out there and he wanted to know if I would not run down and see what the trouble was down there." Moltrum agreed to go when Errington advised him that the respondent would pay his expenses. When he arrived at the re- spondent's plant in Bound Brook, Moltrum was informed by the plant superintendent, Summerville, that the A. F. of L. was also trying "to get in" at Newark. Upon returning to Chicago, Moltrum reported his findings to Errington and Vice-president N. E. Van Stone. Van Stone thereupon instructed Moltrum to go back to Bound Brook, in order to keep a tentative appointment already made with employees there, and also to "run up and see 'what is going on at Newark." Errington gave Moltrum a total of $300 in cash to cover the expenses 2 Martin is now chairman of the respondent 's Board. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the two trips. The foregoing findings are based upon the uncon- tradicted testimony of Moltrum which we accept, as did the Trial Examiner, as substantially true. At the time of Moltrum's visit, the Newark employees had no labor organization. Grievances were taken up with management through a committee of the Friendship Club, a social organization financially supported by the respondent. Moltrum conferred with George San- ford, Sr., head of the Friendship Club, and urged the formation of a Newark local to be affiliated with PVA. According to the uncon- tradicted testimony of Sanford he called at Superintendent Sturmer's home 3 the following morning and reported the details of his confer- ence with Moltrum. Later in the same day, and upon Sturmer's in- structions, all factory employees were assembled, during working hours and without loss of pay, to' hear Sanford's report. Sanford advised the employees of Multrum's visit and its purpose, pointed out what he considered to be possible disadvantages of organization, stated in effect that a labor organization was not needed at Newark because the Friendship' Club would handle any grievance that the employees might have, that working conditions were "ideal" in the Newark plant, and that "Mr. Sturmer has promised that he will do as much for the men as the Chicago organization." Sanford then called for a vote of the employees so that he could go to Sturmer and "advise him we are not in accord with organizing this plant." Despite Sanford's advice, however, an independent organization was soon thereafter formed at the Newark plant, known as Sherwin- Williams Company Employees Association, herein called the Asso- ciation. Employees Kiziu, Roebuck, Lebo, and Cogan solicited mem- bership in the organization and were known as the "organizers." No officers were elected, nor did the Association function as a bargaining representative of the employees. In February 1940, at the request of the organizers, Moltrum returned to Newark, and at an Association meeting explained the PVA to the employees. He told the employees that if they would set up a Newark local of that organization they could get a contract with the respondent similar to those already in existence at other plants of the respondent. A few days later the Association's membership voted to affiliated with the PVA. Such affiliation consisted of abandoning the old organization name, of sign- ing application blanks for membership in the PVA local, and of elect- ing officers. Cogan became president, while Lebo and Roebuck were elected vice president and secretary-treasurer, respectively. The undisputed evidence shows that in March the PVA local requested Superintendent Sturmer for recognition as sole collective bargaining agency for all employees at the Newark plant. Sturmer 8 Sturmer was ill. THE SHERWIN-WILLIAMS COMPANY 657 asked for proof that it represented a majority of the employees, and accordingly signatures on the membership cards of the PVA local were checked by Personnel Manager Klotz. Although this check showed that the PVA local represented a majority of all production workers, Sturmer ignored the demand for recognition , but agreed to meet with the PVA local's committee. Thereafter, contract pro- posals and counterproposals were exchanged between the PVA local and the respondent, but no agreement was reached and the respondent did not grant formal recognition to the local as the exclusive bargain- ing agency of the respondent's employees. 2. The formation of Local 1310 On May 24, 1940, a meeting of the PVA local was called for the purpose of considering the respondent's counterproposal. Moltrum was present at this meeting and, after the membership had voted to reject the respondent's counterproposal, "took the floor" and advised those present that the independent union was "on the way out." Moltrum then recommended the American Federation of Labor as the organization that "could do the most" for the employees. Upon the conclusion of Moltrum's remarks the PVA local membership voted by a large majority to affiliate with the A. F. of L. Accordingly, ap- plication was made to the American Federation of Labor- for a charter which was received on June 3. At about the same time application cards were signed by the members of the PVA local designating Local 1310 as the signers' representative for the purpose of collective bar- gaining. Officers in the PVA local continued to hold the same positions in Local 1310. 3. Negotiations prior to the strike of September 16, 1940 A few days after Local 1310 had received its charter, Cogan was summoned to Sturmer's office, where the latter asked him why the PVA local had not replied to the respondent's counterproposal. Cogan replied that the employees had rejected the counterproposals and had joined the A. F. of L. Sturmer then told Cogan and Otto Kanach, who accompanied Cogan, that the employees did not need an outside organization, and that they ought to have their own inside group.4 Cogan then asked Sturmer to arrange a meeting at which Van Stone, whose office is in Cleveland, could be present. At such a conference on June 27, Van Stone was given a letter by Local 1310 in which the latter claimed that it represented a majority of employees * This finding is based upon Cogan's testimony , which is not directly contradicted by Sturmer. Sturmer testified : "if Mr. Cogan told me about the A. F. of L affiliation, I don't recall it." 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the Newark plant and requested that it be recognized as the sole collective bargaining agency of the Newark employees. Van Stone protested that he had come there expecting to meet with an independ- ent group, and when Cogan pointed out that he had previously` informed Sturmer of the A. F. of L. affiliation, Van Stone rebuked the employees' committee for getting "mixed up" with the A. F. of L. Van Stone also told of instances where A. F. of L. officials purportedly had been jailed for various crimes and said that he had once shut down one of the respondent's mills at Cleveland because the A. F. of L. had organized its employees. When Cogan insisted that Van Stone make some commitment on the question of recognition, the official agreed to consult his attorney and find out whether "the company could recognize two unions within the same year." The following day Van Stone informed Cogan that he had been unable to locate the attorney and did not know when he could decide the recognition question. At the same time Van Stone refused to discuss Cogan's request to permit Local 1310 to-continue taking up grievances with management, as had been the practice while the PVA was negotiating with the respondent. The findings above are based upon the un- disputed testimony of Cogan which was corroborated substantially by Roebuck and Quine.. On July 2, 1940, Local 1310 filed with the Board a "Petition for Investigation and Certification of Representatives." On July 23 a conference between Local 1310 and the respondent's representatives was held at the Board's office in the Second Region. The officials of the local brought with them the membership cards and applica- tions for membership in Local 1310 and offered to submit proof of majority. Counsel for the respondent informed them that an elec- tion to determine the bargaining representative was unnecessary,' declined to examine the membership records of Local 1310, and stated that the respondent would "bargain" with Local 1310. Officers of the Local thereupon circulated a bulletin addressed to "Sherwin- Williams Workers!" which stated, in part: We have gained the first step in our march toward better wages and working conditions, at a conference at the National Labor Relations Board. Dr. Van Stone, Mr. Sturmer, and the Com- pany Attorney agreed to recognize us and bargain for a new contract . . . [italics supplied] The findings above relative to the July 23 conference are based upon the testimony of Cogan which we accept, as did the Trial Examiner, as true. On July 24 counsel for Local 1310 wrote to Sturmer, informing the respondent that Local 1310 was withdrawing the petition referred to above because of the management's offer at the Board office to rec- THE SHERWIN-WILLIAMS COMPANY 659 ognize and bargain with the Union." The letter also informed Sturmer that a proposed contract would be submitted in a few days. Sturmer did not reply at once to this letter, but 2 days later posted the. following notice on the plant bulletin boards : In view of recent happenings at this plant we are making this statement so that all employees will know the policy of the Company. Every employee should feel free to join or refuse to join any labor union or organization. The Company has always taken the position that it is willing to meet and bargain with any organization that claims it repre- sents any of our employees. We have previously held several meetings with a local union and tried in good faith to reach an agreement with them. We have now been requested to meet with another union and in accordance with our general policy we have stated our willing- ness to meet with it. If we can reach a satisfactory agreement with them, we will be glad to do so, the same as we would with any organization. One fundamental policy of the Company is that no employee has to join any organization to get a job or to keep a job with this Company. On July 29 counsel for the respondent answered the above-mentioned letter from Local 1310 addressed to the superintendent, and said, in part : You will remember that we said we would-be glad to meet and bargain with you at any time, but -I also stated to you that I had not time to investigate the facts, and I felt we should not undertake to determine last Tuesday morning the question of whether you are entitled to be the exclusive bargaining agent for the employees, so it was simply an understanding to meet and bargain with you without determining any other things at that time. Also on July 29, officers of Local 1310 gave Sturmer a proposed contract, and asked for a formal meeting with Van Stone. There- after, a conference was held on August 6, attended by representatives of management and of Local 1310. Van Stone opened the proceed- ings by commenting, seriatim, upon each clause in the proposed agreement. 6 By the same mail, Local 1310 wrote to the Regional Office of the Board and formally requested withdrawal of its petition. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the exclusive recognition clause, Van Stone said : We agreed to recognize you fellows at the Labor Board or you would not be here now talking about this . . . We will pass that up . . . That is a question for the attorneys to decide .. . There is so much on recognition and sole collective bargaining that you could write volumes on it . . . We won't go into that now. Van Stone indicated that the respondent would agree to certain items of the proposed contract (such as the unit and the period for which the contract would run), passed over other items without com- ment, and at length came to a paragraph relating to holidays with pay. On this point Cogan urged the position of Local 1310, and, Van Stone voiced the respondent's objection. On the subject of wage increases, Van Stone argued that the respondent paid higher wages than its competitors, and could not afford to grant the demand, but agreed to consider it further if the Local could show, by citing wage rates at other plants, that the request was reasonable. Cogan agreed to try to obtain the information, and at this point the conference broke up. Subsequently, on August 16, Sturmer asked Cogan why the Local had not requested another conference. Cogan replied that he had been unable to get the data demanded by Van Stone and that he felt that Van Stone was making it difficult for Local 1310 by requiring it to furnish such information. During the latter part of August, Cogan succeeded in obtaining, from an A. F. of L. official on Long Island, a list of the average rates for a number of plants in the New York area. Thereafter another conference was held between Local 1310 and the respondent on September 5. During this meeting, Cogan read from his memo- randum concerning the above-mentioned rates. Van Stone declared, however, that average rates were of no value to him, but that he must have specific rates in a specific factory. Cogan 'protested that the A. F. of L. official would not reveal the names of individual plants. At the time of this discussion, Van Stone had before him a prepared chart of job rates for each of a large number of individual paint manufacturers in that vicinity. These rates had been fur- nished to the respondent by the National Association of Paint, Var- nish and Lacquer Industry, an organization of which the respondent was a member, and had been obtained by Van Stone before coming to Newark for this conference. In answer to an inquiry from Cogan, Van Stone admitted having the rates for plants in that area. Cogan then suggested that if the respondent's data showed it to be paying higher rates than its competitiors, the Local might drop its request for an increase. Van Stone replied: "Why should I give you fellows THE SHERWIN-WILLIAMS COMPANY 661 the rates . . . You fellows want them, that is your job . . . go out and get them." Cogan protested than Van Stone was making it extremely difficult to negotiate an agreement, and that at future conferences, the Local would ask for the bargaining assistance of some A. F. of L. official. Van Stone replied that even if the A. F. of L. held a gun at his head, it would make no difference to him. Cogan then asked Van Stone to discuss some other article or para- graph of the proposed agreement. Van Stone thumbed 'rapidly through the pages of the proposed contract, declared he did not like the contract as a whole, and the meeting ended without a date being set for reconvening, and with Van Stone insisting that the Local "get the rates." The above findings relative to the conferences of July 29 and August 5 are based upon the uncontradicted testimony of Cogan which we accept, as did the Trial Examiner, as true. A special meeting of Local 1310 was held on September 11, 1940, at which, by a vote of 158 to 2, the officers were empowered to call a strike unless an agreement could be reached with the respondent by noon of September 16. Sturmer was notified by letter of the Local's action." The superintendent scheduled a conference with Local 1310 for 10 o'clock on the morning of September 16, and at that hour the parties convened. Sturmer's secretary came into the room, and counsel for Local 1310 asked counsel for the respondent if she was there to take notes of the meeting. When informed that she was there for that purpose, counsel for Local 1310 pointed out that no stenographer had been present at previous meetings, and that Local 1310 would not proceed if she remained. Counsel for the respondent declared he would not proceed unless she did remain. No agreement being reached on this point the meeting adjourned,' and the strike was immediately called. 6 The letter stated, in part . We feel that our constant efforts to reach an agreement have not been met with a corresponding sincere effort on your part, and therefore feel compelled to notify you that we desire a completion of these negotiations by Monday , September 16, at noon, and that we will continue and expect -normal operations until then , but in the event of a failure to conclude an agreement by that time , a strike will be declared. 7 Before leaving the meeting, counsel dictated the following statements to the stenog- rapher : Mr VEACH (respondent's counsel). We are here prepared to meet, and bargain with you gentlemen You say you will not sit down here and meet and deal with us if a stenographer is present . We insist one be here, and apparently that is as far as we can go UNION LAWYER We are prepared to meet and bargain with the representatives of the Sherwin-Williams Company. There having been no stenographer present at any conference during the last six weeks there is no reason for one now Since Mr. Veach will not sit down and bargain with us without a stenographer present we refuse to have one. 451269-42-vol. 34-43 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Negotiations during the strike The strike continued from September 16 until October 25, 1940. During this period, formal conferences were held on October 4 and 9 between representatives of management and of Local 1310. The first conference was opened by the respondent's counsel stating that the respondent could agree to none of the paragraphs of the proposed contract submitted by Local 1310, which included a paragraph pro- viding for recognition of the Union as exclusive bargaining repre- sentative of the employees. It offered no counterproposal to said proposed contract which had been submitted by Local 1310 more than 2 months befgre: Throughout the conferences, the respondent de- voted its efforts to an attempt to induce. Local 1310 to recede from, or abandon, its demands. Local 1310 repeatedly receded from its demands, but at the close of the October 9 conference the respondent continued to refuse to accept any of the Local's proposals, including the request for recognition of Local 1310 as the exclusive bargaining agency." On October 11, during a telephone conversation with Cogan, Superintendent Sturmer again refused to grant recognition as requested. 5. The back-to-work movement Soon after thb strike was called, Superintendent Sturmer, former Superintendent Hehl 9 and District Manager Baeter began an attempt to break the strike by meeting surreptitiously with individual em- ployees. On September 24, 1940, these officials met at a highway restaurant, by prearrangement, with three or four striking employees, $ Shortly before the conference ended counsel for Local 1310 proposed that Local 1310 would call off the strike and the employees would return to work if the respondent would agree in writing to "a seniority clause," "some sort of grievance set up, " "continuation of the present privileges ," and "recognition [of Local 1310] as the sole and exclusive bargaining agency." In reply to this proposal the respondent's counsel stated, "We feel it is not feasible to try to do it piecemeal , that these things are important parts of an agreement as a whole agreement which includes the subjects of wages, hours and all the various other things." He further stated : "If they ( the strikers ) want to go back to work, we will take a chance and start the plant. That is the only thing I know of to suggest right now." By indirection, also, the respondent refused to acknowledge the legal right of Local 1310 to recognition in the following colloquy , occurring near the close of the last conference: COUNSEL FOR LOCAL 1310. Will you give us a written agreement to recognize us as the sole exclusive bargaining agency for all of your employees? COUNSEL FOR THE RESPONDENT . I am not going to start out on any such program any more than you will with me, having you put me on the witness stand and asking questions . I am willing to sit here and discuss with you the various principles as we come to them. The only way to get that would be to see what we are willing to give you and what you are willing to give us. COUNSEL FOR LoCAL 1310. Are you willing to give us that? COUNSEL FOR THE RESPONDENT. You ,have heard me tell you. e Sturmer succeeded Hehl as superintendent at Newark in September 1939. At the time of the strike in 1940, Hehl was eastern industrial sales manager for the respondent. THE SHERWIN-WILLIAMS COMPANY 663 one of whom had previously telephoned Sturmer that he wanted to come back to work. At the close of the meeting, which lasted about an hour and during which they discussed reopening of the plant, the employees decided to talk to others before going back to work.10 On the following day the same group met at the Newark Athletic Club, in a private room the use of which was paid for by the respondent. After some discussion, it was decided to ask Cogan and "his group" 11 to come to the Club. When the Local 1310 committee arrived, Hehl offered to serve as a "mediator" between the respondent and the striking employees. When Lebo, one of Cogan's group, stated that the respondent "has not offered us anything," Hehl replied, "Sup- posing we offer you a contract." One of the employees then asked Hehl if he meant "an A. F. of L. contract" and Hehl replied, "Now you are talking things right out of my hands again. Just as soon as you mention A.- F. of L. . . . that puts it right back into Mr. Veach's hands, the company's attorney." The employees who had previously been in conference with the respondent's officials also urged Cogan to work out some agreement with the respondent without the participation of the A. F. of L. Upon the basis of the above, we find, as did the Trial Examiner, that Hehl's proposal was, in effect, an offer by the respondent to the employees of a contract if they would abandon the A. F. of L. On October 5, the day after Sturmer and other management offi- cials had met with Local 1310 in a negotiating conference, Sturmer went at night to a saloon to confer with employee Kiziu, one of the four with whom he had talked on September 25. When another striker, observing the superintendent and Kiziu walk towards a back room of the saloon, asked permission to accompany them, he was refused. Sturmer and Kiziu then left by the back door of the saloon and proceeded to the home of another employee, where about a dozen workers were gathered. Sturmer told them that the gates of the plant were open, if they wanted to come back to work. The next day Sturmer employed the Manning Industrial Service 12 to station guards and cars at a specified point in Newark on the morn- ing of October 8, to escort employees who wanted the protection, to the plant. Although a number of guards and cars reported as in- 10 Sturmer testified "They decided then that they would talk to more people before they would come back to work, and they would let us know." 11 So characterized by Sturmer. 12 The Board introduced into evidence excerpts from Report No. 6, "Violations of Free Speech and Rights of Labor," of the Committee on Education and Labor , relating to the Committee's findings as to strikebreaking activities of the Manning Industrial Service at other plants. In this case, however, the evidence shows that , with the exception of one night watchman, the only services performed by the Manning operatives were of taxiing and providing police protection to employees from some point in the city to the respondent's plant. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strutted, Kiziu was the only employee to return to work on Octo- ber 8. On October 20, 1940, about 19 other employees withdrew from the strike and went back to work. On October 24, Local 1310 voted to end the strike and return to work, and by November 6 all of the employees, but one '13 had returned to work. In December 1940 and January 1941, Sanford, former head of the Friendship Club, led a campaign to induce union members to resign from Local 1310. Among those who forwarded resignations were Kiziu and others who had conferred with Sturmer during the back-to-work movement. B. Conclusions as to the unfair labor practices 1. Conclusions as to interference, restraint, and coercion' We find, as did the Trial Examiner, that both Moltrum, on the occasion of his visit to Bound Brook and Newark at the instance of Errington, and Sanford, in addressing the employees relative to Moltrum's visit, were serving as agents of the respondent while engaged on those occasions in the conduct described above. That their efforts may have been at cross-purposes is immaterial, since it is clear that Moltrum was operating in behalf of Errington and Van Stone, while Sanford was under the instructions of Superin- tendent Sturmer. Moltrum's errand,-to find out whether or not the A. F. of L. was organizing in Newark-and Sanford's address to employees during working hours, advising them not to form a labor organization, were acts which clearly interfered with the em- ployees' statutory rights. We find, as did the Trial Examiner, that the respondent, by the statements and acts of Moltrum and Sanford, on the occasions referred to, interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed by Section 7 of the Act. By the above-described statements of Van Stone and Sturmer, to the effect that the employees did not need, an outside organization to represent them, that A. F. of L. officials had been jailed, that the respondent had closed down a Cleveland plant because the A. F. of L. had organized it; by the posting of the bulletin of July 26 in which the respondent stated, when under an affirmative duty to recognize Local 1310 as the exclusive representative of its employees, as found in Section 2 c infra, that it was "willing to meet and bargain with any organization that claims it represents any, of our employees"; [italics supplied] and by the statement of Hehl in offering the em- ployees a contract provided that it was not "an A. F. of L. contract," 13 It is not claimed that the failure to reinstate this employee was discriminatory TIIE SI3ERWIN-WILLIAM8 COMPANY 665 the respondent interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act. By meeting with strikers, other than officers of the Local whom they knew to represent the employees, as hereinafter found, by pro- viding and paying for conference space for the discussion with such strikers of ways and means by which strikers might be returned to work and thereby cease their concerted action, the respondent, through its supervisory officials Sturmer, Hehl, and Baeter, inter- fered with, restrained, and coerced the employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Conclusions as to the refusal to bargain. a. The appropriate unit The complaint, as amended during the hearing, alleges that all hourly paid employees and salaried laboratory assistants,'} employed at the respondent's Newark plant, constitute a unit appropriate for the purposes of collective bargaining. Although in its answer the respondent denied that the alleged unit is appropriate, it offered no evidence to support its denial or to establish the propriety of any other unit. We find that all hourly paid employees and salaried laboratory assistants, employed at the respondent's Newark plant, at all times material herein, constituted and now constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to the employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effec- tuates the policies of the Act. b. Representation by Local 1310 of a majority in the appropriate unit Two lists of the respondent's hourly paid employees and labo- ratory assistants, one as of July 23 and the other as of September 16, .1940, were submitted in evidence. Local 1310 submitted mem- bership cards signed between June 3 and August 15. The respond- ent did not challenge the genuineness of the signatures on any of these cards, nor did it contend that any members resigned from Local 1310 prior to the strike of September 16. Examination of the membership cards and the pay-roll lists shows that on July 23 Local 1310 had 140 members among the 225 employees in the appropriate 14 The respondent's laboratory department consists of about 35 employees , divided into two groups : technicians and assistants Technicians are graduate chemists who make formulae for the manufacture of paint and perform research duties . Laboratory assistants do production work and test samples, and in many cases are transferred to this department from the hourly paid production workers. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit; and that on September 16 Local 1310 had 165 members among the 223 employees in the same unit. - We find that on July 23, 1940, and at all times thereafter, Local 1310 was the duly designated representative of a majority of the em- ployees in the appropriate unit, and by virtue of Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. c. Conclusions with respect to the refusal to bargain The obligation of an employer to bargain collectively under the Act includes the duty to recognize the representative chosen by a ma- jority of the employees as the exclusive bargaining agencyl6 At no time during its negotiations with Local 1310, from July 23, 1940, un- til the-date of the hearing, has the respondent performed the duty im- posed by the Act of recognizing Local 1310 as the exclusive bargaining agent for all employees in the appropriate unit. Yet, at no time during the negotiations with Local 1310 did the respondent question Local 1310's claim that it represented a majority of the respondent's employees. In fact, when Local 1310 offered to present proof in sup- port of its claim, the respondent refused to examine the membership records, stating that it would "bargain" with Local 1310. Contrary to such promise and despite its failure to question the majority status of Local 1310, the respondent consistently refused to grant Local 1310 the recognition to which it is entitled. Such refusal constitutes a plain violation of the Act's ss Matter of The Griswold Manufacturing Company and Amalgamated Association- of Iron, Steel and Tin Workers of North America, Lodge No 1196, 6 N. L R. B. 298, enf'd N. L. R. B. v . The Griswold Manufacturing Company, 106 F. (2d) 713 ( C. C. A. 3). In this case the Court said : "Denial of union recognition is a 'violation of the rights of em- ployees to organize into unions . . The Court said, further : ". . . the very soul of the Wagner Act is its mandate that the employer shall , if the employees so desire , bargain with the union of the employees as a unit, and the recognition of that unit in the bargain- ing process." ie We find no merit in the contention of counsel for the respondent that "there need not be any recognition clause. It certainly is sufficient under the language of the statute if the company does not bargain with any other union, and whether we were obliged to or not, I call attention to the fact there isn't a bit of evidence in the record that we bargain with any other union, any other agency representing the employees throughout the time in question ." The facts in the record refute counsel 's argument. It is necessary here to cite but two examples : ( 1) the bulletin posted by Sturmer on July 26, 3 days after the Local had demonstrated that it represented a majority of the employees and therefore had a legal right to recognition as the exclusive bargaining agency, stating that the respondent was "willing to meet and bargain with any organization that claims it represents any of our employees." [italics supplied ] ; ( 2) the effort of former Super intendent Hehl during the strike to persuade strikers that he could obtain a contract for them if they would abandon the A. F. of L. Moreover, contrary to the respondent's con- tention, denial of recognition to Local 1310 as the exclusive bargaining representative of the employees constituted a refusal to bargain within the meaning of the Act. See footnote 22, supra. THE SHERWIN-WILLIAMS COMPANY 667 Moreover, the respondent at no time made a genuine effort to reach an agreement. Former President Martin's threat in 1936 and 1938 that the respondent would deal with the A. F. of L. only "over his dead body" stood the test of actual events in 1940. Although repeatedly requested to do so by Local 1310 the respondent never, by counterproposal or otherwise, made a sincere effort to find a basis for agreement with that organization. We are satisfied and find that Van Stone's requirement that Local 1310 obtain economic data to support certain demands, under the circumstances here pres- ent, was not made in good faith. At the September conference, Van Stone plainly demonstrated that he had been negotiating with no serious intention of reaching an agreement with the Local, when he refused to reveal the information already in his possession, but told Local 1310 to "go out and get" its own rates. Van Stone's refusal to reveal this data, as well as his refusal to discuss other points in the pro- posed contract, was inconsistent with the principle of collective bar- gaining which seeks agreement as its end. His attitude in that regard effectively demonstrates the respondent's resolve to evade its duty to bargain collectively with the chosen representative of its employees. Nor were the two formal negotiating meetings held during the strike attended by the respondent in the spirit of bargaining required by the Act. As found above, the respondent refused even to acknowledge Local 1310 as the exclusive bargaining representative of its employees; its single "concession" was to permit the strikers to return to their jobs without discrimination. Accordingly, with one hand the respondent withheld the right to recogni- tion, and with the other offered to agree to reinstate the strikers without discrimination. Thus, the respondent maintained the sem- blance of "bargaining" only with respect to rights already accorded the employees by the Act, and which were not within the power of the respondent legally to withhold or confer. Finally, the offer of Hehl, Sturmer's predecessor, to obtain a contract for the employees if they would drop the A. F. of L., not only constituted a flagrant interfer- ence with their right to choose their own bargaining agent, but was a further demonstration of the respondent's resolve, previously ex- pressed by Martin, that it would not bargain with the A. F. of L. - We find that on July 26, 1940, and at all times thereafter the re- spondent refused to bargain collectively with Local 1310 as the ex- clusive representative of a majority of the employees within the ap- propriate unit, and that the respondent thereby interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. We further find that the strike called by Local 1310 on September 16, 1940, was occasioned by the respond- ent's unfair labor practices in thus refusing to bargain with Local 1310. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 respond- ent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices we will order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent refused to bargain collectively with Local 1310. To effectuate the policies of the Act, we shall order that the respondent, upon request, bargain collectively with Local 1310 as the exclusive representative of its employees within the unit herein found to be appropriate. At the hearing the respondent con- tended that a majority of the employees in the appropriate unit no longer desired to be represented by Local 1310 for the purposes of collective bargaining. As stated above, however, a majority of such employees were members of Local 1310 at the time of the unfair labor practices and had designated Local 1310 to represent them. It is plain, therefore, and we find that any defection from the membership of Local 1310, which the respondent might have shown, was the direct result of the respondent's illegal evasion of its duty to bargain with Local 1310 and of its other unfair labor practices. Consequently, any loss of majority after the commission of the unfair labor practices cannot permit the respondent to evade its duty to bargain with Local 1310. Accordingly, the respondent's refusal to bargain must be remedied by an order to bargain based on the majority obtaining on the date of the refusal to bargain.17 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. Paint, Varnish and Allied Products Local Union No. 1310, Brotherhood of Painters, Decorators and Paperhangers of America, 11 See N. L. If. B. v. Bradford Dyeing Ass'n., 310 U. S. 318, in which the Supreme Court said, in part : In view of the substantial support in the evidence for the Board 's findings that the company intimidated and coerced its employees . . . the Board properly concluded that "The unfair labor practices of the respondent cannot operate to change the bargaining representative previously selected by the untrammelled will of the majority." THE SHERWIN-WILLIAMS COMPANY 669 affiliated with the American Federation of Labor, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. All, hourly paid employees and salaried laboratory assistants employed at the respondent's Newark plant, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Paint, Varnish and Allied Products Local Union No. 1310, Brotherhood of Painters, Decorators and Paperhangers of America, affiliated with the American Federation of Labor, was on July 23, 1940, and at all times thereafter has been the exclusive representative of all the employees in such unit for the purposes of collective bar- gaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on July 26, 1940, and at all times thereafter, to bargain collectively with Paint, Varnish and Allied Products Local Union No. 1310, Brotherhood of Painters, Decorators and Paper- hangers of America, affiliated with the American Federation of Labor, as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, The Sherwin-Williams Company, Newark, New Jersey, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Paint, Varnish and Allied Products Local Union No. 1310, Brotherhood of Painters, Decorators and Paperhangers of America, affiliated with the American Federation of Labor, as the exclusive representative of all its hourly paid employees and salaried laboratory assistants employed at its Newark plant; (b) 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 con- 670 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD certed activities for the purpose of collective bargaining or other mu- tual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will, effectuate the policies of the Act : (a) Upon request, bargain collectively with Paint, Varnish and Allied Products- Local Union No. 1310, Brotherhood of Painters, Decorators and Paperhangers of America, affiliated with the Ameri- can Federation of Labor, as the exclusive representative of all of its hourly paid employees and salaried laboratory assistants employed at its Newark plant, in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment; . (b) 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 Newark plant notices 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 the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. MR. EDWIN S. SMITH took no part in the consideration of the above Decision and Order.