Medo Photo Supply Corp.

National Labor Relations Board - Board Decisions

Sep 5, 1942

43 N.L.R.B. 989 (N.L.R.B. 1942)

In the Matter Of MEDO PHOTO 'SUPPLY CORPORATION and AMERICAN
FEDERATION OF , PHOTO EMPLOYEES UNION, LOCAL 21314, A. F.
OF L.
Case No. 2219.Decided September 5, 1942
Jurisdiction : sale and, distribution of photographic supplies industry.
Unfair Labor Practices
Interference, Restraint, and Coercion:, bargaining directly with employees after
recognizing union.
Collective Bargaining majority established by membership application cards-
refusal to bargain by: bargaining directly with employees upon their request
and upon their agreement to abandon union, after recognizing union ; loss
of majority under such circumstances no justification for refusal to bargain
thereafter.
Remedial Orders : order to bargain collectively ; loss of majority through replace-
ment of personnel for various reasons, after unfair labor practices, no bar
to order to bargain.
Unit Appropriate for Collective Bargaining : all production employees, includ-
ing packers, order packers, receiving and shipping clerks, and errand boys,
excluding office, selling, and supervisory employees.
Mr. Sidney Reitman, for the'Board.
Seligsberg, Friedman c Berliner, by Mr. William E. Friedman, of
New York City, for the respondent.
Mr. Al Stoltrrzan, of New York City, for the Union.
Miss Marcia Hertzmark, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by American Federation of Photo E m-
ployees Union, Local 21314, affiliated with the American Federation
of Labor, 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 April 14,,1942,
against Medo Photo, Supply, Corporation; New York City, herein
called the respondent, alleging that the respondent had engaged in,
and was engaging in, unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (5), and Section 2 (6) and (7) of the
43 N. •L. R. B., No. 176.
989
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and notice of hearing were duly served upon
the respondent and the Union. -
Concerning the unfair labor practices, the complaint alleged in sub-
stance that the respondent : (1) from on or about May 23, 1941, to the
date of the complaint , urged and persuaded its employees to refrain
from assisting, or becoming or remaining members of the Union, and
offered the employees, wage increases to so persuade them; (2) on or
about May '23, 1941, and at all times thereafter, refused upon request,
to bargain collectively with the Union as the exclusive representative
of the respondent's employees in an appropriate unit, although the
Union on that date and at all times thereafter was the properly desig-
nated bargaining representative of a majority of the employees in the
appropriate unit; and (3) on or about June 6, 1941, negotiated di-
rectly with the employees. In its answer, dated April 18, 1942, the
respondent denied that it had engaged in the unfair labor practices
alleged.
Pursuant to notice, a hearing was held at New York City, on April
30 and May 1, 1942, before William F: Guffey, Jr., the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel, the Union by its representa-
tive, and all participated in the ,hearing. Full opportunity to' be
heard, to examine and cross -examine witnesses , and to introduce evi-
dence bearing upon the issues was afforded all parties. The respond-
ent, at the beginning of the hearing, at the close of the Board's case,
,and at the close of the respondent 's case, moved to dismiss the com-
plaint. The Trial Examiner denied these motions . During the hear-
ing the Trial Examiner, without objection, granted the Board's motion
to amend the pleadings to conform to the proof. During the course
of the hearing, the Trial Examiner made rulings on other motions
and on objections to the admission of evidence . The Board has re-
viewed the rulings of theTrial Examiner and finds that no prejudicial
errors were committed . The rulings are hereby affirmed.
On June 8, 1942 , the Trial Examiner filed, his Intermediate Report,
copies of which were served upon the respondent and the Union, find-
ing that the respondent had engaged iii '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 therefrom and that it bargain.
collectively with the' Union upon request.
Thereafter, the respondent filed exceptions to the Intermediate Re-
port and a brief in support of its exceptions . It also requested per-
mission to argue orally before the Board. Pursuant to notice, a
hearing for the purpose of oral argument was held on July 23, 1942,
MEDO PHOTO SUPPLY CORPORATION 991
before the Board in Washington, D. C. The respondent and the Union
were represented and participated in the argument. The Board has
considered the exceptions and brief of the respondent and, insofar as
the exceptions are inconsistent with the findings of fact, conclusions
of law, and order set forth herein, finds them to be without merit.
Upon-the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF TIIE RESPONDENT
The respondent, a New York corportaion having its principal- office
and place of business in New York City, is engaged in the purchase,
wholesale and retail sale, and distribution of photographic supplies
and related equipment such as cameras, film, and papers. , During the
period from November 1, 1941, to April 30, 1942, a typical period,
the respondent purchased more than $900,000 worth of merchandise,
approximately 13 percent of which was shipped from points outside
the State of New York to the respondent's place of business in New
York City. During the same period the respondent sold approxi-
mately $1,000,000 worth of photographic supplies, about 30 percent
of which was sold and shipped by the respondent to customers located
outside the, State of New York. The. respondent admits that it is
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
American Federation of Photo Employees Union, Local 21314, is
a labor organization, affiliated with the American Federation of Labor,
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
The refusal to bargain collectively; interference, restraint, and coercion
1. The appropriate unit
The respondent -employs approximately 70 employees, including
some "outside " salesmen, all of whom work at or out of the same
place of business in New York City, which ,includes a retail store and
a shipping and receiving department.
The complaint alleges that all the production employees including
packers, order pickers, receiving and shipping clerks, and errand boys
employed at the respondent 's New York place of business , but exclud-
ing office, selling , and supervisory employees, constitute an appropriate'
e
992 DECISIONS OF NATIONAL LABOR RELATION& BOARD
unit.' The respondent in its answer denied this allegation and at the
hearing contended that all its employees constitute an appropriate
unit.
The employees in the shipping and receiving department are en-
-gaged in the receiving of incoming merchandise and the packing, ship-
ping, and delivery of wholesale and retail orders. They do not come
in direct contact with the customers and need no Working knowledge
of, the merchandise they handle. They work in a, different section
of the building from that in which the other employees work, and
generally, do not come in contact with the other employees. The
"outside" salesmen and the employees in the retail store, on the other
hand, deal directly with the customers and must have a good working
knowledge of the merchandise they sell. They are, unlike the em-
ployees•`in the shipping and receiving department, "white- collar"
employees receiving substantially higher salaries than do the employees
of the shipping and receiving department. According'.to the testi-
mony of the Union's president, which we credit, as did the Trial Ex-
aminer, the employees 'of the shipping and receiving department have
indicated a preference for a unit consisting of the shipping and receiv-
ing department employees. There is no persuasive reason for ignoring
this preference. The Union has limited its organizational activities
to those employees which it claims constitute an appropriate unit, and
it is the Board's policy to exclude office and supervisory employees
and salesmen,2 who are the employees which the Union here seeks to
exclude from the unit. In view of these circumstances, we are of the
opinion that a unit comprising the employees of the shipping and
receiving department is appropriate. " .
We find that all production employees of the respondent, including
packers, order pickers, receiving and shipping clerks, and errand boys,
but excluding- office, selling, and supervisory employees, at all times
material herein constituted, and that they now constitute, a unit appro-
priate for the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment, and that said unit insures to employees of the respondent the•
full benefit of their right to self-organization and to collective bargain-
ing and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
On May 23, 1941 , there were 26 employees in the respondent 's ship-
ping and receiving department, which has been found herein to con-
'At the hearing the department employing all of the employees included in the unit
claimed to be appropriate was referred to as the shipping and receiving department.
For the purposes of brevity it will be so referred to herein
2 See Fourth Annual Report of National Labor Relations Board, pp. 93-95.
MEDO PHOTO SUPPLY CORPORATION 993
stitute an appropriate unit. Of this number 18 had, on that date,
signed membership application cards designating the Union as their
collective bargaining representative.'
We find that on May 23, 1941, and at all material times thereafter,
the Union was and now is, the duly designated representative of a
majority of the employees in the aforesaid appropriate unit, and that,
by virtue of Section 9 (a) of the Act, the Union at all such times was
and now is the exclusive representative of all the employees in such
unit for the purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, or other conditions of employment.
3. The refusal to bargain
a. Chronology of events
On May 22, 1941, the Union sent a letter to the respondent requesting
it to negotiate a contract covering the employees represented by the
Union. Al Stoltman, the Union's president, testified without contra-
diction, and we find, that on May 23 he informed Irving M. Good-
field, the respondent's vice president and treasurer, that the Union
represented the respondent's employees and requested an opportunity
to negotiAe an agreement on their behalf. Goodfield replied that
A. H. Niemeyer, the respondent's president, was out, of town, and
that negotiations would have to await his return, which was expected
"very shortly, [within] a week or so, or two weeks." On the same
day the Union filed with the Board a petition for investigation and
certification, claiming as appropriate the unit found above.
On June 4, representatives of the Board, the respondent, and the
Union conferred at the Board's Regional Office with respect to the
Union's petition for certification. William E. Friedman, one of the
respondent's attorneys, questioned the appropriateness of the re-
quested unit and stated that in his opinion only a formal hearing
before the Board could solve the problem,. When Stoltman asked
Friedman if there was any way "to avoid a long delay of going' to a
formal hearing," Friedman replied that he would arrange a conference
for the purpose of considering the unit question, and that if the re-
spondent and the Union could agree as to the appropriate unit, the
respondent would consent to the Union's being certified and the parties
would "automatically go into the process of bargaining."
On June 5, in accordance with Friedman's commitment the previous
day, representatives of the Union and the respondent, including Nie-
meyer, Goodfield, and Benjamin L. Hoppin, the respondent's general
manager, met at the office of the respondent's attorneys. Concerning
' Of these cards 6 were signed on•May 21, 11 on May 22 , and 1 on May 23.
481039-42-vol. 43-63
994 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
what occurred at this conference, Stoltman testified that, when he
stated that the Union desired to be certified by the Board as the
representative of the employees in the above-described unit, Walter
M. Seligsberg, one of the respondent's attorney, asked to see the
Union's proposed contract and' stated that the respondent _"certainly
is not going to buy a pig in a poke ... by consenting to the Union's
being certified, and then finding out what they had to bargain for."
Seligsberg said that if the Union's proposed contract was "too tough"
the respondent would "have to employ all the means we know how,
and we will have to fight you through the Board and try to straighten
the thing out." When Stoltman questioned-the "ethics" of this pro-
cedure, Seligsberg answered, "You should understand those things,
Stoltman. It is not a 'question of ethics but it is a question of being
practical." Seligsberg then stated that if- the proposed contract
"constituted a reasonable basis for negotiations," the respondent would
consent to the Union's being certified after a check of its cards or
an election- and that the respondent would then bargain with the
Union.
With this understanding Stoltman submitted a proposed contract.
After examning it Seligsberg stated, "I believe 'that the contract is a
basis for negotiations, and we can arriie at an agreement." He then
asked how many employees had signed union cards and requested the
Union to present its cards as proof of its claim. When Stoltman
stated that he would submit them for a check by an impartial third
person, but would not submit them to the respondent, Seligsberg re-
plied that,he had no real doubt concerning the Union's majority status.,
When Stoltman, nevertheless, insisted that,, the Union be certified in'
accordance with the agreement of the parties, Seligsberg stated, "Oh,
there is no sense in us going through all that. After all, you have got
all you wanted, and we are going to negotiate with you . . . Let us
sit down and negotiate. That is the primary thing you are after."
Seligsberg did not deny the above statements which Stoltman at-
tributed to him, and his testimony concerning this conference , in many
respects, corroborates Stoltman's. Seligsberg testified that at the
June 5 conference he told Stoltman that the Union's demands consti-
tuted "the crux of the matter" and that if the Union had a majority
"then maybe we can negotiate an agreement without wasting a lot of
time." He also testified that he asked to see the Union's proposed
contract for the purpose of determining whether the Union was "de-
manding such extreme things that we would have to fight from the
start." ; When asked to explain the nature of the "fight" the respond-
ent would wage against the Union, Seligsberg testified : "Well, we
would use all the ways that the law gave us to avoid having a deal with
an improper unit, or with a unit whose propriety was questionable, or
MEDO- PHOTO SUPPLY CORPORATION 995'
with a unit without proof that the bargainers represented the
majority."
Seligsberg also testified, however, and the respondent now claims,
that the respondent had not, at this conference, agreed to the unit-re-
quested by the Union nor accepted its statement that it represented a
majority of the employees in that unit. However, when asked at the
bearing wh',ther he had discussed these questions at the conference
on June,5, Seligsberg replied, "In' no'detail. I am not sure that I
mentioned that to Stoltman. That is what we had in mind. Whether
I started to state that we did not think the unit was right or not may
or may not be the case."
It is thus apparent, and we find, that the respondent was not stand-
ing upon its asserted doubts as to the appropriateness of the unit or
the Union's majority status but was, on the contrary, preparing to
oppose the Union on those grounds in the event its demands were un-
acceptable. Upon all the evidence, we find, as did the Trial Examiner,,
that on June 5 the respondent waived its objections, if any, to the unit,
conceded that the Union represented the necessary majority, recognized
the Union, and agreed to confer again with the Union the following
Monday, June 9, for the purposes of discussing the Union's demands.
On the morning of June 7, Ray Bruchbacher, 1 of the employees
who had signed a union card, went to Hoppin's office and requested
an opportunity fora group of employees of the shipping and receiving
department to confer with him. Hoppin replied that he would receive
the employees that afternoon after working hours. Earlier the same
morning B 'uchbacher told William Goshgarian, another member of
the Union, that "We will go up and see if we can get a-raise, if we
don't get a raise, we won't bother to do nothing about it," and that the
employees, in that event, would remain members of the Union. In
the afternoon, 12 of the employees who had signed union cards went
to Hoppin's office and, upon Hoppin's inquiry as to why they were
there, stated that they and the remaining 6 members of the Union,
who were unable'to be present, had decided among themselves that the'
had no desire to belong to the Union if they could obtain wage in-
creases through their own efforts. They then submitted to Hoppin
a list of proposed wage increases which were substantially the same as
those demanded by the Union, which Goshgarian had helped to formu-
late, and which were included in the proposed contract submitted to
the respondent at the June 5 conference. Hoppin refused to discuss
the Union, but stated that he would consider the request for wage
increases with President Niemeyer upon the latter's return to the store
the following Monday morning, and told the employees to come in
again at that. time for an answer. On Monday, June 9, Hpppin,
Niemeyer, and.Goodfield, all of whom were present at the June 5 con-'
996 DECISIONS OF NATIONAL LABOR RELATIO-N S BOARD
ference when the Union submitted its proposed contract containing
its wage demands , discussed the employees ' request for wage increases.
Shortly thereafter, a committee of 4 of the employees who had con-
ferred with Hoppin on June 7 called upon Hoppin who informed
them that their proposed wage increases had been granted substan-
tially as requested . The committee conveyed Hoppin's message to the
other employees who agreed to accept the increases which the respond-
ent was willing to grant. The committee ' then informed Hoppin
that, "the boys downstairs felt that they did not need the union, and
we would rather stay out." The wage increases became effective on
June , 13 and at the same time the respondent put into effect a general
wage increase.
Hoppin testified that about a week before June 7 he had spoken to
Niemeyer about general business conditions , which had been excep-
tionally good the preceding 6 months, and had suggested that "there
was something that we ought to,do for all the employees." According
to Hoppin's testimony, Niemeyer was "quite agreeable." There is no
testimony, however, that anything further took place pursuant to this
conversation. It appears that the respondent 's policy is to grant wage
increases at the end of each year rather than at intermediate times.
We do not credit Hoppin's testimony that he and Niemeyer had de-
cided prior to June 7 to grant wage increases. We find that the deter-
mination to take this action on June 9 was occasioned solely by the
employees' offer to withdraw from the Union if the raises were granted.
During the afternoon of June 9, representatives of the respondent
and the Union , and 4 employees who were present upon the Union's
request, conferred in the office of the respondent's attorneys. On the
way-to the conference the 4 employees manifested an unfriendly atti-
tude toward Stoltman and stated to him that the employees of the
shipping and receiving department no longer desired the Union to
represent them. The employees had not withdrawn their designation
of the Union as their representative prior to June 9. • Even then, only
4 of the 18 who had joined the Union informed Stoltman that they
no longer desired to be represented by the Union. When Stoltman,
at the beginning of'the conference , stated that the parties were present
for the purposes of negotiating an agreement , Seligsberg replied that '
he understood that the Union no longer represented a majority of the
employees and for that reason the respondent could not at that time
negotiate an agreement with the Union, but that he would consent
to the holding of an election andothat if the Union could thus prove'
that it represented a majority of the employees, he "would see what
could be done ." The 4 employees present again stated that they no
longe
r i
desired to remain members of the Union. The representatives
of the Union thereupon withdrew from the conference.
MEDO PHOTO SUPPLY CORPORATION 997
b. Concluding findings
Upon the facts here disclosed, the respondent has refused to bargain
collectively with the freely chosen' representatives of its employees.
On June 5, as we have found, the respondent waived its objections,
if any, to the unit and recognized the Union, which had theretofore
been freely designated by a majority of the employees therein, as
the exclusive representative of all employees in ,the unit. It is clear
that any question concerning representation which had theretofore
existed had been resolved and that the respondent was, therefore,
obligated to bargain with'the Union on behalf of these employees.
On June 7, the respondent, notwithstanding its recognition of the
Union 2 days earlier, bargained directly with a group of employees
concerning wage increases, one of the most fundamental objectives
of collective bargaining.- Clearly to bargain directly with one's em=
ployees is not to bargain with their designated exclusive representa-
tive.' The employees, as found above, had not withdrawn their
designation of the Union as their collective bargaining representative
and there is no evidence that the Union had ceased to. represent the
employees. Nor did the action of the employees in approaching
the respondent on June 7 constitute an implied revocation of their
designation of the Union so as to relieve the respondent of the obli-
gation to deal solely with it. Far from communicating to the re-
spondent an abandonment of the Union, the employees there clearly
conditioned such abandonment upon the granting of wage increases.
Thus' they held themselves out as union members, at the same time
offering the respondent, for a price, the power to veto their choice
of a representative. The respondent, under these circumstances, was
under a duty to' refrain from action which would influence the em-
ployees to abandon the Union, and its action in granting the increases
constituted interference with the salf-organizational rights of its
employees.' "To permit the, employer to go behind the chosen bar-
N. L R B v. Highland Shoe, Inc, 119 F. (2d) 218, 221 , (C. C. A 1).
Cf Matter of Germain Seed and Plant Company and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen it helpers of America , Local No. 595, AFL, 37
N. L. R B. 1090 , wherein the Board found that an employer 's action in granting wage
increases when his employees indicated to him that unless he did so they would abandon
the organization which the employer had formed and dominated and join an afilliated
union, constituted support to the dominated organization and interference with,the rights
of the employees. See also N. 'L. It B. v. W. A. Jones Foundry and Machine Co., 123 F.
(2d) 552 ( C C. A 7 ), enf'g Matter of TV . A. Jones Foundry and Machine Co , a corpo-
ration and International Association of Machinists , District No 8, affiliated with the
Anier ican Federation d f Labor, 30 N L R B . 809, M. H. Ritzwoller Company v. N. L R B,
114.E (2d) 432 (C. C- A 7), enf'g as mod Matter of M II Ritzwoller Company and
Coopers' International Union of Non th America , Local No 18, 15 N L. R B 15;
Southern Colorado Power Co. v, N. L R B., 111 F (2d) 539 (C C A 10), enf'g Matter
of Southern Colorado Potter Co and H. H. Stewart and I L Watkins, Individuals,
13 N L' R B. 699; see also Great Southern,Truching Company v . N. L It. B , 127 F.
(2d) 180 (C. C A. 4) enf'g Matter of Great Southern Trucking Company , Charlotte
Branch and International Brotherhood of Teamsters , Chauffeurs, Stablemen and Helpers
of America, Local -# 71, 34 N. L. F. B. 1068.
998 DECISIONS OF- NATIONAL LABOR' RELATIONS BOARD
3
gaining agent and negotiate with the employees individually, or with
their committees, in spite of the fact that they had not revoked the
agent's authority, would result in nothing but disarrangement of the
'mechanism for negotiation created by the Act, disparagement of the,
'services of the union, whether good or bad, and acute, if not endless,
friction, which it is the avowed purpose of the Act to avoid-or
mitigate." 6 In these circumstances, for the respondent to deal directly
with its employees was to deny to the Union its statutory status and
was, therefore, a refusal to bargain collectively.
.The validity of this conclusion is not altered, as the respondent con-
'tends, by the mere fact that the direct dealing emanated from the
employees rather than from the respondent. The gist of the respond-
ent's violation of the Act is its direct negotiations with the employees
after they had designated, and the respondent had recognized, an
exclusive bargaining representative. It is, therefore, immaterial from
whence came the impulse to deal directly.'
Moreover it is plain that the respondent cannot excuse its refusal
to bargain on and after June 9 on the basis of the. alleged defections
from .the Union, even assuming that a number sufficient to destroy
the majority had repudiated the Union before June 9. These de-
fections were induced by the respondent's unlawful conduct in deal-
ing directly with the employees. It follows, therefore, that the unfair
labor practices of the respondent cannot operate to destroy the ex-
elusive representative status of the Union previously established by the
untrammelled will of the majority of the employees in the unit.8,
In view of the foregoing, and upon the entire record herein, we find
that the respondent on June 7, 1941, and at, all times thereafter, refused
to bargain collectively with the Union as the exclusive representative of
its employees in an appropriate unit, and has thereby interfered with,
restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act. ,
We further find-that the respondent, by the above-recited acts, has
violated' Section 8 (1) of the Act, and has thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section` 7 of the Act.
0N L R B v Acme Air Appliance Company, Inc, 117 F. (2d) 417, 420 (C. C. A 2).
See also Inland Lime and Stone Company v N L, R B, 119 F. (2d) 20, 22 (C. C. A. 7).
7 Matter of If uch Leather Co and General C. I. 0 Union, 11 N. L R. B 394, upon
which the respondent relies, is distinguishable from the present case on its facts. In that
case the employer had refused to accept the Union's evidence of its majority and had
refused to recognize'the Union Moreover, there were no pending negotiations between
the employer and the Union; negotiations were awaiting the outcome of the Union's
petition for certification
8 See N L R B v. Bradford Dyeing Association, 310 U. S. 318.
MEDO -PHOTO SUPPLY CORPORATION 999
IV. THE EFFECT OF THE UNFAIR' LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the repondent decribed
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 shall order it to cease and desist therefrom and to
take 'certain affirmative action in order to effectuate the policies of
the Act.
We.have found that the respondent refused to bargain collectively,
with the Union as the exclusive representative of its employees in an
appropriate unit. Accordingly, we shall order the respondent, upon
request, to bargain collectively with the Union. -
The respondent claims that the Union no longer represents a ma-
jority of. the employees within the appropriate unit, since some em-
ployees have been replaced for various reasons, and contends that "to
impose the union upon' the present employees is their representative
without having given them an opportunity to choose for themselves,
is unfair and inequitable." There is no merit in this contention. It
was the tespcndent's act in dealing with its individual employees which
occasioned the initial defections from 'the Union, as we have found
above. It cannot now be permitted to evade its duty to bargain with
the Union by reason of the fact that new employees, who are not
shown to be members of the Union, have since been hired to replace
some of those who were members of the Union. We assume that, ab-
sent the unfair labor practices of the respondent, the Union would have
been able to obtain as members at least some of the new employees and
would have maintained its majority status despite the turnover of
personnel. In any event, in order to effectuate the policies of the Act,
we must restore, as nearly as possible, the status quo before the unfair
labor practices were conlmitted.1
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
°lfatter of Clarksburg Publishing Co , et al and The Newspaper Guild of Clarksburg
No 118, of the American Newspaper Guild, 25 N. L. R. B. 456, enf'd, N: L N B V.
Clarksbairq Publishtinq Co, 120 F. (2d) 976 (C. C. A. 4) ; Matter of George P Palling
& Son' Co and Dental, Surgical & Allied Workers Local Industrial Union No 119,
a hated with the C I. 0., 16 N. L. R B. 650, enf'd,"N. L _e. B. v. George P. Palling & Son
Co., 119 F. ( 2d) 32 (C. C. A. 3).
1000 DECISIONS OF, NATIONAL LABOR RELATIONS -BOARD
CONCLUSIONS OF-LAW
1. America: n • Federation of Photo Employees Union, Local 21314,
affiliated with the American Federation of Labor, is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. All production employees, including packers, order pickers, re-
ceiving and shipping clerks, and errand boys, employed in the respond-
ent's New York place of business, but excluding office, selling, and
supervisory employees, constitute a unit appropriate for purposes of
collective bargaining, within the•meaning of Section 9 (b) of the Act.
'- 3. American Federation of Photo Employees Union, Local 21314,
affiliated with the American Federation of Labor, was, on May 23, 1941,
and at all material times thereafter has been, the exclusive representa-
tive of all the employees in said unit for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with American Federation of
Photo Employees Union, Local 21314, 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 int
the exercise'1of 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 foregoing 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 re-
spondent, Medo Photo Supply Corporation, New York City, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from : '
(a) Refusing to bargain collectively with American Federation of-
Photo Employees Union, Local 21314, affiliated with the American
'Federation of Labor, as the exclusive representative of all the produc-
tion employees in the respondent's New York place of business, includ-
ing packers, order pickers, receiving and shipping clerks, and errand
boys, but excluding office, selling and supervisory employees;
(b) Engaging in any like or related acts or conduct interfering
with, restraining, or coercing its einplo^ees in the exercise of the rights
of self-organization, to form, join, or assist labor organizations, to.
MEDO PHOTO SUPPLY CORPORATION 1001
bargain collectively through representatives of their own choosing
and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection as gutiranteed 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 American Federation
,of Photo Employees Union, Local 21314, affiliated with the American
Federation'of Labor, as the exclusive representative of all production
employees in the respondent's New York place of business , including
packers, order pickers, receiving and shipping clerks, and errand boys,
but excluding office, selling and supervisory employees, with respect
to rates of pay, wages , hours of employment, and other conditions of
employment;
(b) Post immediately in conspicuous places in its New York place
of business and maintain for a period of at least sixty ( 60) consecu-
tive 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 paragraph 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,writ-
ing withen ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
MR. WM. M. LEisEEsoN took no part in the consideration of the above
-Decision and Order.