National Bag Co.

National Labor Relations Board - Board Decisions

Feb 18, 1946

65 N.L.R.B. 1078 (N.L.R.B. 1946)

In the Matter of BEN SAMUELS D/B/A NATIONAL BAG COMPANY and
ST. Louis JOINT BOARD, TEXTILE WORKERS -UNION OF AMERICA,
CIO
Case No. 14-C-1077.-Decided February 18, 1946
DECISION
AND
ORDER
On November 21, 1945, the Trial Examiner issued his Intermediate
Report in the above -entitled proceeding , finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that he cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter , the respondent filed exceptions to the
Intermediate Report and a supporting brief. No request for oral
argument before the Board at Washington , D. C., was made by any
of the parties , and none was held. - .
The Board has reviewed the Trial Examiner 's rulings made at the
hearing and finds that no prejudicial error was committed . The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report , the respondent 's brief and exceptions , and the entire record
in the case , and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Ben Samuels d/b/a Na-
tional Bag Company, St. Louis, Missouri, and his officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with St. Louis Joint Board,
Textile Workers Union of America, CIO, as the exclusive representa-
tive of all his employees, excluding office and clerical employees, fore-
men, and all other supervisory employees with authority to hire, pro-
I See N L R B. v. Blair Quarries , Inc., 152 F. ( 2d) 25 (C. C. A 4).
65 N. L. R. B., No. 192.
1078
NATIONAL BAG COMPANY 1079
mote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action;
(b) In any manner interfering with the efforts of St. Louis Joint
Board, Textile Workers Union of America, CIO, to bargain collec-
tively with him.
2. Take the following affirmative action which the board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with St. Louis Joint Board,
Textile Workers Union of America, CIO, as the exclusive representa-
tive of all his employees in the aforesaid appropriate unit, in respect
to rates of pay, wages, hours of employment, and other conditions of
employment;
(b) Post at his plant at St. Louis, Missouri, copies of the notice
attached to the Intermediate Report, marked "Appendix A." 2 Copies
of said notice to be furnished by the Regional Director for the Four-
teenth Region, shall, after being duly signed by the respondent or
his representative, be posted by respondent immediately upon receipt
thereof, and maintained by him for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the respondent to insure that said notices are not altered, defaced, or
covered by any other material;
(c) Notify the Regional Director of the Fourteenth Region in
writing, within ten (10) days from the date of this order, what steps
the respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Harry G . Carlson, for the Board.
illr. Samuel A. Kessler, of St. Louis, Mo., for the respondent.
Mr Frank J. Swantner, of St. Louis, Mo., for the Union.
STATEMENT OF THE CASE
Upon a first amended charge duly filed on October 22, 1945, by St. Louis Joint
Board, Textile Workers Union of America, CIO, herein called the Union, the
National Labor Relations Board, herein called the Board, by its Regional Director
for the Fourteenth Region (St. Louis, Missouri), issued its complaint dated Oc-
tober 23, 1945, against Ben Samuels d/b/a National Bag Company,' herein called
respondent , alleging that respondent had engaged in and was engaging in unfair
2 Said notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER" and
substituting in lieu thereof the words "A DECISION AND ORDER."
' The name of respondent was so amended at the commencement of the hearing upon
motion of counsel for the Board The complaint had originally named respondent as
"Ben Samuels and Katharine Samuels, co -partners , d/b/a National Bag Company."
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 accompanied by notice of hearing
thereon were duly served upon respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that respondent on or about March 7, 1945, and at all times thereafter, refused,
and continues to refuse, to bargain oollectively with the Union as the exclusive
bargaining representative of respondent's employees within an appropriate
bargaining unit, although a majority of the employees in such unit, in an election
conducted under the supervision of the Board on September 26, 1944, had desig-
nated and-selected the Union, and the Union was certified by the Board on Oc-
tober 6, 1944, as the exclusive bargaining representative of the employees in said
unit, thereby interfering with, restraining, and coercing his employees in the
exercise of the rights guaranteed in Section 7 of the Act
Respondent thereafter, on October 31, 1945, filed an answer in which he ad-
mitted certain allegations of the complaint, but denied that lie had engaged in
any unfair labor practices.
Pursuant to notice, a hearing was held at St. Louis, Missouri, on November 5,
1945, before Martin S. Bennett, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. The Board and respondent were represented
by counsel and the Union by a union official. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. At the close of the hearing, the Board moved
to conform the pleadings to the proof with respect to dates and other such minor
variations. There was no objection and the motion was granted. At the close
of the hearing, respondent moved to dismiss the complaint for lack of proof.
Ruling was reserved. The motion is hereby denied. At the conclusion of the
hearing, counsel for the Board and for respondent argued orally before the
undersigned. The parties were afforded an opportunity to file briefs. None
have been received.
Upon the entire record of the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF. FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Ben Samuels, doing business as National Bag Company, has his
sole.place of business at St. Louis, Missouri, where he is engaged in the process-
ing and jobbing of textile bags. During the period from March to September
1945, respondent purchased used textile bags valued in excess of $18,000, of
which approximately 80 percent was shipped to him from points outside the
State of Missouri. During the same period, respondent sold, used and processed
textile bags valued in excess of $18,000, of which approximately 80 percent was
shipped by him to points outside the State of Missouri. Respondent also deals
in machine sewing twine, jute, and cotton.'
Respondent admits that lie is engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
St. Louis Joint Board, Textile Workers Union of America, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting to
membership employees of respondent.
2 This finding is based upon a stipulation of the parties and upon evidence adduced at
the hearing.
NATIONAL BAG COMPANY
III. THE UNFAIR LABOR PRACTICES
1081
A. Chronology of events
Sol Samuels did business under the trade name and style of National Bag
Company at St. Louis, Missouri, for approximately 15 to 20 years prior to
March 1945. His brother, Ben Samuels, was employed by him for 15 years,
the last 4 or 5 thereof, as he testified, as manager. Ben Samuels testified
that his brother Sol was absent "about two months a year" ; that Sol was present
"at least four hours a day" when in town ; and that he, Ben, was "considered
as manager." Employees Mamie Dunlap and Willie Mitchell testified and the
undersigned so finds, Ben Samuels was in active charge of the plant.
Union organizational activity commenced at the plant some time prior to June
12, 1944.8 In August 1944, the Union requested recognition on the basis of a
card check ; it was refused. The Union then filed a petition for investigation and
certification of representatives and, after the usual proceedings, the Board on
September 6, 1944, issued a Decision and Direction of Election 4 finding, inter alia,
that all employees of National Bag Company, excluding office and clerical em-
ployees, foremen, and all other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees. or effectively recommend such action, constitute a unit appropriate
for the purposes of collective bargaining within the meaning pf Section 9 (b) of
the Act. Pursuant to an election conducted on September 2'6, 1944, under the su-
pervision of the Regional Director for the Fourteenth Region, the Board on Oc-
tober 6, 1944, certified the Union ascthe exclusive representative for the purposes
of collective bargaining of the employees in the unit heretofore indicated.
Subsequent to the certification, the Union mailed a proposed agreement to the
Company on October 22, 1944. During November, Ben Samuels, in a telephone
conversation, acknowledged receipt of the agreement. Negotiations concerning the
provisions of the contract then commenced between the parties. . Swantner con-
ferred with Ben Samuels on three or four occasions ; on at least one occasion, Sol
Samuel was present? On January 22 , 1945, all suggested changes having been in-
corporated to the complete satisfaction of both parties, a draft of the agreement
was sent by the Union to respondent "for acceptance". Between January 22 and
February 21, Swantner had several telephone conversations with Ben Samuels
who claimed that lie was too busy to confer with him On the last of these oc-
casions, a date was set for the execution of the agreement; however, on the
evening prior to this date (approximately February 21), Ben Samuels was called
out of town because of the illness of his brother Sol. The latter died on February
25. The plant was then closed for about 2 weeks, reopening on March 7. Just
prior to March 7, when telephoned by Swantner, Ben Samuels requested a further
extension of time because of his brother's death.
. On March 7, 1945, the Probate Court of St. Louis County ordered the sale by the
executors of the estate of Sol Samuels to Ben Samuels and Katherine Samuels 8
of "the merchandise inventory, the machinery, fixtures, equipment and supplies,
and trade name `National Bag Company'." The sale was effected that day.7
' It was so testified by Frank J Swantner , manager of the Union , who assumed office
on that date The findings as to the events which follow are based upon his testimony
and that of Ben Samuels.
4 58 N L. R B 106
5 Swantner so testified Ben Samuels testified that his brother Sol, when in town,
was present at all union conferences.
s See footnote 1.
Ben Samuels testified that although be did not purchase the real estate he leased the
same premises . The accounts receivable and payable were not transferred to Ben Samuels
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 19, Swantner called Ben Samuels on the telephone and was referred by
the latter to his attorney, Samuel A. Kessler. After telephoning Kessler several
times and not finding him in, he wrote to Kessler setting April 25 as a deadline
for acceptance of the contract by respondent. No reply was received. On May 1,
the Union applied to the United States Conciliation Service for assistance. A
Conciliator met with the parties on May 14, at which time respondent raised
two objections to recognition of the Union ; first, that the Union should first
organize the employees of two of his competitors, and second, that the certification
of October 6 was not binding upon respondent because of the change of ownership
of the business.
This was the first time that these two contentions, only the latter of which
respondent relies upon in this proceeding, were raised. No objections were
raised herein by respondent as to the appropriateness of the unit certified by the
Board nor has the union majority been contested.
On July 3, 1945, the Union wrote to respondent requesting an immediate de-
cision as to whether respondent would carry out his agreement to sign a contract
with the Union. No reply was received and the Union thereafter filed a charge
with the Board. -
B. The Union 's status as the majority representative in an appropriate unit on
March 7, 1945
As set forth above, the Board, on September 6, 1944, found that all employees
of the National Bag Company in specified operations constituted a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9
(b) of the Act, and, on October 6, 1944, the Board certified the Union as the ex-
clusive collective bargaining representative of all such employees.
Respondent; on March 7 , 1945, purchased the merchandise inventory , machinery,
fixtures, equipment , supplies , and trade name ; he leased the same plant operated
by his predecessor and operated under the same trade name. He reopened on
March 7 with the same 10 employees who had worked for his predecessor "with
the exception of maybe one or two". The employees continued to do the same
type of work and no new job classifications were added . Respondent purchases
from and sells to a substantial percentage of the same sources dealt with by his
predecessor . It is admitted , and the record indicates , that no substantial changes
were effected in the operations of the business or in its personnel , and that this
condition existed at the date of the hearing.' The undersigned finds that Na-
tional Bag Company is, and has been since March 7, 1945 , essentially the same
enterprise as that operated and owned prior thereto by Sol Samuels.
The certification issued by the Board on October 6, 1944, was but 5 months
old on March 7, 1945 . Nothing in the record indicates any change in the repre-
sentative status of the Union s As heretofore noted, respondent has herein offered
no objection to the appropriateness of the unit nor as to the Union's majority
therein. The certification as to the representative status of the Union remained
effective notwithstanding the fact that a change of management and ownership
occurred subsequent to its issuance.10
Ben Samuels and employees Mamie Dunlap and Willie Mitchell testified to this effect.
° Matter of Bohn Aluminum and Brass Corporation, 57 N. L . R B. 1684; Matter of
Marshall, Meadows & Stewart, 63 N. L. R. B 233 (Supplemental Decision and Order).
10 Matter of Syncro Machine Company, Inc., 62 N. L R . B. 985, decided 6/29/45. Matter
of South Carolina Granite Company, et al., 58 N. L. R B. 1448 Cf. N L. R. B. v. Adel
Clay Products Co., 134 F. ( 2d) 342 ( C C. A. 8 ), where the Court said, "It is the employing
industry that is sought to be regulated and brought within the corrective and remedial
provisions of the Act-the strife which is sought to be averted is no less an object of legis-
lative solicitude when contract, death or operation of law brings about change in the
employing agency." [ Italics supplied.]
NATIONAL BAG COMPANY 1083
On the entire record, the undersigned finds that on March 7, 1945, all of respond-
ent's employees, excluding office and clerical employees, foremen, and all other
supervisory employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recommend such
action, constituted a unit appropriate for the purposes of collective bargaining.
C. The ref itsal to bargain
Respondent stipulated that on and after March 7, 1945, he refused to bargain
collectively with the Union as the respresentative of his employees in the afore-
described appropriate unit. It having been found that the Union upon that date
was the collective bargaining representative of all the employees in the aforesaid
unit, the undersigned accordingly finds that on March 7, 1945, and at all times
thereafter, respondent has refused to bargain collectively with the Union as the
exclusive representative of his employees in an appropriate unit, thereby inter-
fering with, restraining, and coercing his employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of respondent, set forth in Section III, above,
occurring in connection with the operations of respondent described in Section I,
above, have-a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V THE REMEDY
Since it has been found that respondent has engaged in unfair labor practices,
it will be recommended that he cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the Act. It having been found
that respondent has refused to bargain collectively with the Union as the exclusive
representative of his employees in an appropriate unit, it will be recommended
that respondent upon request bargain collectively with the Union.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. St. Louis Joint Board, Textile Workers Union of America, CIO, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. All employees of respondent's St. Louis plant, excluding office and clerical
employees, foremen, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, at all times material herein, con-
stituted, and now constitute, a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3 St. Louis Joint Board, Textile Workers Union of America, CIO, was on
March 7, 1945, and at all times thereafter has been, the exclusive representative
of all employees in the aforesaid appropriate unit for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
4 By refusing on March 7, 1945, and thereafter, to bargain collectively with St.
Louis Joint Board, Textile Workers Union of America, CIO, as the exclusive
representative of all his employees in the aforesaid appropriate unit, respondent
has engaged in, and is engaging in, unfair labor practices within the meaning of
Section 8 (5) of the Act.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By interfering with, restraining , and coercing his employees in the exercise
of the rights guarateed in Section 7 of the Act , respondent has engaged in, and
is engaging in, unfair labor practices withal 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.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, the undersigned recommends that respondent, Ben
Samuels d/b/a National Bag Company, St. Louis, Missouri, his officers, agents,
successors and assigns, shall:
1. Cease and desist from
(a) Refusing to bargain collectively with St Louis Joint Board, Textile Workers
Union of America, CIO, as the exclusive representative of all his employees,
excluding office and clerical employees, foremen, and all other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action.
(b) In any manner interfering with the efforts of St. Louis Joint Board,
Textile Workers Union of America, CIO, to bargain collectively with him'
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act.
(a) Upon request, bargain collectively with St Louis Joint Board, Textile
Workers Union of Amei ica, CIO, as the exclusive representative of all his
employees in the aforesaid appropriate unit;
(b) Post at his plant at St. Louis, Missoui i, copies of the notice attached hereto,
snaiked "Appendix A". Copies of said notice to be furnished by the Regional
Director for the Fourteenth Region, shall, after being duly signed by the re-
spondent or his representative, be posted by respondent immediately upon receipt
thereof, and maintained by him for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees ate customarily
posted. Reasonable steps shall be taken by respondent to insure that said notices
are not altered, defaced, or covered by any other material ;
(c) File with the Regional Director of the Fourteenth Region on or before ten
(10) days of the receipt of this Intermediate Report, a 'report in writing setting
forth in detail the manner and form in which respondent has complied with the
foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the re-
ceipt of this Intermediate Report, respondent notifies said Regional Director in
writing that he will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring respondent to take the action
aforesaid.
As pro1'ided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944, any
party or counsel for the Board may, within fifteen (15) days from the date of the
entry of the order transferring the case to the Board, pursuant to Section 32 of
Article II of said Rules and Regulations, file with the Board, Rocha-mheau Build-
ing, Washington, D. C, an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part of
the record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support thereof.
21 N. L. R B. v Express Publishing Co.. 312 U. S. 426.
0
NATIONAL BAG COMPANY 1085
Immediately upon the filing of such statement of exceptions and/or brief, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board , request therefor must be made in writing to the Board
within ten ( 10) days from the date of the order transferring the case to the
Board.
MARTIN S. BENNETT,
Trial Exanynier.
Dated November 21, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that :
I WILL BARGAIN collectively upon request with the union named below
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment , and if an understanding is reached , embody such
understanding in a signed agreement . The bargaining unit is: All employees,
excluding office and clerical employees , foremen and all other supervisory
employees with authority to hire, promote, discharge, discipline or other-
wise effect changes in the status of employees, or effectively recommend
such action.
I WILL NOT in any manner interfere with the efforts of St. Louis Joint
Board, Textile Workers Union of America , CIO, representing my employees,
to bargain collectively with me.
BEN SAMUELS D/B/A NATIONAL BAG COMPANY,
Employer
Dated-------------- By------------------------------ -------------------
(Representative ( Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.