National Licorice Co.

National Labor Relations Board - Board Decisions

May 31, 1938

7 N.L.R.B. 537 (N.L.R.B. 1938)

In the Matter of NATIONAL LICORICE COMPANY and BAKERY AND
CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA,
LOCAL UNION 405, GREATER NEw YORK AND VICINITY
Case No. C-410.Decided May 31, 1938
Licorice Products Manufacturing Industry Interference, Restraint, and,
Coercion : expressed opposition to labor organization ; antiunion statements;.
threat to close and transfer plant ; persuading employees to refrain from form-
ing or joining or to resign from union ; circulation of antiunion petition among:
employees-Company-Dominated Union: abortive attempt to initiate and form::
domination of and interference with formation and administration ; support;.-
coercion to join; disestablished , as agency for collective bargaining-Contract:
collective, with organization found to be company-dominated, void ; individual
contracts of employment, void, as contrary to provisions of the Act; coercion
and intimidation to sign ; "yellow dog" ; employer ordered to cease and desist
from giving effect thereto-Strike-Picketing-Unit Appropriate for Collective
Bargaining: production employees, including working foremen, but excluding
executive, supervisory, and office employees, salesmen, and truck drivers ; no.
controversy as to-Representatives: proof of choice : applications for union
membership-Collective Bargaining: employer's duty ; negotiation in good
faith : meeting with representatives but with no bona fide intent to reach an
agreement ; refusal to recognize union, as bargaining agency representing em-
ployees ; special forms of remedial order : recognition as exclusive representa-
tive ; enter into agreement with representatives of employees, if understanding.
is reached.
Mr. Charles E. Graham, for the Board.
Kotzen, Mann do Siegel, by Mr. Abraham Mayon and Mr. Joseph
Yaspan, of New York City, for the respondent.
Mr. Kalman Sklar, of New York City, for the Union.
Mr. Wallace M. Cohen, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On July 21, 1937, Bakery and Confectionery Workers Interna-
tional Union, Local Union No. 405, Greater New York and Vicinity,
herein called the Union, filed with the Regional Director for the
Second Region (New York City) a petition alleging that a question
affecting commerce had arisen concerning the representation of
employees at the Brooklyn, New York, factory of National Licorice
537
.538 NATIONAL LABOR RELATIONS BOARD
Company, Brooklyn, New York, herein called the respondent, and
,requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On August 13, 1937, the Union, having
previously filed a charge, duly filed an amended charge with the
afore-mentioned Regional Director, alleging that the respondent had
engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (1), (2) and (5), of the Act. On October
7, 1937, the National Labor Relations Board, herein called the Board,
by Elinore Morehouse Herrick, the said Regional Director, duly
issued and served its complaint and notice of hearing upon the
respondent and the Union. The complaint alleged that the respond-
ent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (2) and
`(5), and Section 2 (6) and (7), of the Act.
In respect to the unfair labor practices, the complaint alleged in
substance (1) that from on or about July 15, 1937, the respondent
had interfered with, restrained, and coerced its employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act by persuading
and coercing its employees to refrain from becoming members of the
Union, and to sign individual contracts of employment, by threaten-
ing to close down its Brooklyn plant and move to another city if the
employees joined or assisted the Union, by making raises of pay
conditional upon nonmembership in the Union, by threatening dis-
charge and other reprisals if they became members of the Union
and not members of an organization formed and sponsored by the
respondent, and by keeping under surveillance the meetings and
meeting places of the employees who were members of the Union; (2)
that on or about July 16, 1937, the respondent initiated, foamed,
sponsored, dominated, and contributed support to a labor organiza-
tion, known as The Collective Bargaining Committee of National
Licorice Company, herein called the Committee; (3) that although
the Union has been, since on or about July 28, 1937, the exclusive
representative of the production employees, excluding the clerical
and supervisory employees, the respondent on that date and at all
times since then refused to bargain collectively with the Union as
the exclusive representative of such employees; and (4) that, by
reason of the afore-mentioned acts, substantially all of the employees
of the respondent went on strike on August 2, 1937, and have re-
mained on strike from said date to the date of the issuance of the
complaint.
On October 13, 1937, the respondent duly filed its written answer,
-denying all of the allegations of the complaint except those relating
DECISIONS AND ORDERS 539
to its corporate existence and the allegation that its employees went
on strike on August 2, 1937. The respondent urges as a separate and
distinct defense (1) that the Board has no jurisdiction over the
respondent or the subject matter of the complaint herein, and that
this proceeding is therefore irregular and void; (2) that at no time
has the Union submitted or supplied to the respondent proof that it
represented a majority of the respondent's employees; (3) that the
respondent conferred with representatives of the Union on or about
July 19, 1937, and bargained with the Union on July 28, 29 and
August 2, 1937; that the Union failed to appear on August 5, 1937,
and bargain further as agreed upon, but instead, without justifica-
tion, caused a strike to be called in the respondent's plant; that on
August 25, 1937, the employees voluntarily and without, solicitation
commenced to return to the plant and practically all had returned by
September 20, 1937; that, on September 9, 1937, the employees in writ-
ing voluntarily disaffirmed and repudiated their alleged membership
in the Union and the designation of the Union as their bargaining
agent, and voluntarily chose a committee to represent them in collec-
tive bargaining with the respondent; that the strike was terminated-
and almost all of the employees have returned to work; that the
respondent has bargained with the aforesaid committee and, as a re-
sult thereof, has entered into contracts signed and executed by the
respondent, the committee, and the employees of the respondent; (4)
that the Board in issuing the complaint is actually interfering with
and undermining the business of the respondent; and (5) that the,
complaint is defective in that the original charge is not annexed to
the complaint 1 and that the amended charge does not contain clear
and concise statements of the facts constituting the alleged unfair
labor practices. The answer concluded by moving that the complaint
be dismissed. Prior to the hearing, the respondent filed a written
notice of motion for a verified bill of particulars of the amended
charge and complaint.
On October 8, 1937, the Board, acting pursuant to Section 9 (c)
of the Act and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 1, as amended, issued an order
directing an investigation and hearing on the petition. This order'
was served at the hearing.2 On October 9, 1937, pursuant to Article
III, Section 10 (c) (2), of said Rules and Regulations, the Board
ordered a consolidation of the petition and charge for the purposes
of hearing, and designated H. R. Korey, Trial Examiner.
1It should be noted that the amended charge in this proceeding was not supplementary
to the original charge but in substitution therefor.
2 The respondent 's objection to the insufficient notice resulted in postponement of the
hearing on the petition.
Z40 NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, duly served, a hearing was held in New York
City from October 13, 1937, to and including October 20, 1937, before
the Trial Examiner. The Board, the respondent and the Union were
represented by counsel and participated in the hearing. Full op-
portunity 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, counsel for the Board served
an answer to the bill of particulars requested by the respondent,
setting forth answers to the demands relating to the allegations in
the complaint but declining to answer the demands relating to the
allegations in the charge, "because the sole moving paper in this
procedure is the complaint and not the charge." The respondent's
motion for further bill of particulars was subsequently denied during
the hearing. The respondent raised certain objections to the con-
solidation of the petition and charge, but counsel for the Board
agreed not to consider the petition at this hearing.3 The respondent
moved to dismiss the complaint because it did not contain a copy of
the original charge. This motion was denied by the Trial Examiner.
At the conclusion of the Board's case and again at the conclusion of
the respondent's case, the respondent moved for the dismissal of the
complaint on the further ground that the Board had failed to prove
its case. , This motion was also denied.
During the course of the hearing, the Trial Examiner made a
number of rulings on objections to the admission and exclusion of
evidence. The Board has reviewed these rulings and rulings made
with respect to the afore-mentioned motions and other motions made
by the parties and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. The respondent requested leave to
submit ,a memorandum on the case. Leave was granted and the
memorandum was submitted.
On February 8, 1938, the Trial Examiner filed his Intermediate
Report, in which he found that the respondent had engaged in un-
fair labor practices affecting commerce within the meaning of Sec-
tion 8 (1), (2) and (5), and Section 2 (6) and (7), of the Act.
He recommended that the respondent cease and desist from these
violations and that the respondent proceed to bargain collectively
with the Union.
Thereafter, the respondent filed exceptions to the Intermediate
Report. On May 4, 1938, the parties were given leave to request
oral argument and file briefs. The Union duly filed a request for
-oral argument, but argument was subsequently waived by agree-
ment of the parties. The Board has considered the exceptions, and
s On May 11 , 1938 , the Board ordered the petition severed from the charge nunc pro
tunc as of October 13, 1937.
12 ._,.'.=:DECISIONS,AND ORDERS 541
the respondent's memorandum to the Trial Examiner, and' finds the
exceptions to be without merit.
Upon the entire record in the, case the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE RESPONDENT
National Licorice Company is a New York corporation, incorpo-
rated in June 1902, and having plants in Brooklyn, New York;
Philadelphia, Pennsylvania; Moline, Illinois; and Montreal, Canada.
The proceedings herein involve only the Brooklyn plant. The re-
spondent is engaged in the business of manufacturing and selling
licorice products and confections for drug, confectionary, grocery,
and allied trades. The chief raw materials utilized are licorice,
flour, sugar, cane molasses, chocolate, anise oil, color, flavorings, oils,
cartons; and tins. Approximately 48 per cent of such raw materials
are purchased from points outside the State of, New York. About
41 per cent of the finished products of the' respondent are sold and
shipped outside the State of New York to points in 27 States. '
Excluding clerical and supervisory employees, the respondent nor-
mally employs approximately 140 persons in its Brooklyn plant.
IT. THE ORGANIZATIONS INVOLVED
The Bakery and Confectionery Workers International Union of
America, Local Union No. 405, is a labor organization, affiliated with
the American Federation of Labor, and successor, in May 1937, to
the Inside Bakery Workers' Federal Labor Union No. 19585, also
affiliated with the American Federation of Labor. It admits to
membership all employees of the respondent, including working
foremen, but excluding executive, supervisory, and office employees,
salesmen, and truck drivers.
The Collective Bargaining Committee of National Licorice Com-
pany is a labor organization admitting to membership all employees
of the respondent, including working, foremen, but excluding execu-
tive, supervisory and office employees, salesmen , and truck drivers.
III. THE UNFAIR LABOR PRACTICES
A. The chronology of events
Early in July 1937, the Union began to obtain signatures of employ-
ees to applications for membership in the Union. By the evening of
July 14, 1937, after 99 of approximately 140 employees had signed
applications, William A. Galvin, president of the Union, sent a tele-
542 NATIONAL LABOR RELATIONS BOARD
gram to the respondent , advising that the Union represented the em-
ployees of the respondent as "their sole collective bargaining agency"
and suggesting a conference "looking toward an agreement covering
the wages , hours and working conditions " of the employees . Although
the respondent received this telegram on the morning of July 15, no
reply was ever made. During working hours on either the afternoon
of July 15 or July 16 and as a result of the receipt of the telegram,
the respondent called a conference of its employees in the lunch room
of the plant . David D. Sanford , president , Walter J. Healey, assistant
secretary , and Dorsey , superintendent of the plant, addressed the em-
ployees. In addition to reading from a prepared statement (not
introduced in evidence ), Sanford, who was in complete charge of the
plant, chided the employees about going to "outsiders" with their
labor problems , declared that the respondent would not recognize an
outside union , and advised them to pick their own committee and
"come to my office and bargain with us." After the officials of the
respondent had withdrawn , the foremen and foreladies reiterated
Sanford's suggestion , urging, "Why don't you do what the boss said?"
The employees, however, at a meeting that evening expressed their
opposition to selecting a committee.
On or about July 20, Galvin and August Picariello , a trustee of the
Union, went to the offices of the respondent , presented a proposed
contract embodying the demands of the Union , and sought to confer
with the officials of the respondent . Sanford, Healey, Carpenter, and
Smylie were present in behalf of the respondent . Although Galvin
,showed his credentials , the officials professed ignorance concerning his
identity , and denied that the Union represented the employees of the
respondent . Galvin offered to show the original applications for mem-
bership, which he had brought with him, but withdrew the offer when
Sanford, in refusing to receive them as proof of representation, said,
"Anyway it would not make any difference what you have there."
That afternoon during working hours approximately 14 employees,
selected as "the most intelligent in our plant that could grasp what
we were trying to say to them," were summoned to Sanford 's office,
where they were informed that "two very lovely young gentlemen who
purported to be representatives of yours" had visited Sanford that
morning. Sanford proceeded to offer his employees a 5-per cent in-
crease, time and a half for overtime and a week 's vacation , with pay,
beginning July 1, 1938. He directed this group to convey his offer to
the employees "and speak to him after we had got together." The
offer was unsatisfactory to the employees.
Within a day or two after this incident , it appears , Dorsey selected
a committee of approximately eight employees to circulate , a petition
DECISIONS AND ORDERS 543
nominating a committee to "supersede" the Union as bargaining rep-
resentative of the employees. There is evidence that Dorsey was
present while a number of signatures were obtained. The attempt
proved abortive, since the signers deleted their signatures immediately
upon discovering the import of the document, and returned it to
Dorsey, who, after taking the paper into Sanford's , office, returned
and said, "It is all off."
The Union, on July 21, 1937, filed a petition for investigation and
certification with the Regional Director for the Second Region. As
a result of the filing, the Regional Office arranged a conference for
July. 28, 1937, between Sanford and Healey, for the respondent, and
Galvin and Sklar, for the Union. John T. McCann, of the Regional
Office, examined the signed applications. When asked by the respond-
ent "if in his opinion" the Union represented a majority of the re-
spondent's employees, Healey testified that McCann replied that he
was `,`convinced in his mind that they did." According to Healey :
"We said we were willing to accept Mr. McCann's say-so that these
men did represent our employees. We would agree to confer with
them at any time and place convenient to both sides." A conference
was arranged for July 29, 1937. Sanford, Smylie, Healey, and a
stenographer were present representing the respondent, and Galvin,
Anderson, Sklar, and Picariello represented the Union. Sanford,
reading from a carefully prepared statement, disposed of substan-
tially all the demands contained in the proposed contract, which the
Union had left with the respondent on or about July 20, by eliminat-
ing them one by one as being "impossible," "impractical," "prepos-
terous," or "unworkable." He then presented counterproposals very
similar to those made to the group of employees on or about July
20, 1937. The meeting was conducted by Sanford in a manner de-
signed to preclude the Union from discussing or arguing its demands.
He stated that he would not recognize the Union as the collective
bargaining agency for the employees and that he would make no
written contract with the Union, but would talk with the Union rep-
resentatives and ask them "to bring back the results of the confer-
ence to his employees and thereafter it would be required of his em-
ployees that they individually sign contracts with them and that he
deal directly with his employees and not with the Union." Galvin
remarked to Sanford that his statements were familiar to him, to
which Sanford replied, "I admit the Brooklyn Chamber of Com-
merce is advising us in these proceedings." Upon conclusion of this
parley, Galvin said, "We'd better get together for a further con-
ference," but no further arrangements were made.
On the morning of August 2, 1937, Anderson, acting for Galvin
during his absence, telephoned Sanford concerning the stenographic
544 NATIONAL LABOR RELATIONS BOARD
notes of the meeting of July 29, which were to have been made avail-
able to the Union. Sanford informed him that the notes had been
jumbled in the transcription, and that in any event the stenographer
had left on her vacation. On Anderson's request that a date be fixed
for further negotiations, August 5 was agreed upon. At' the plant a
conspicuous unrest among the employees throughout the morning
culminated in a "stoppage" of work following the noon hour. All of
the employees gathered in the shipping room away from the machines
and remained there throughout the afternoon. Conflicting testimony
obscures the real facts surrounding the matter of the employees' occur
pation of the premises that afternoon ; but it appears that the police
and armed guards were called, and that the girls left at 3 o'clock,
and the men left around 4: 30 following a speech read by Smylie.
According to Healey, this speech was prepared "following our practice
of being very, very careful of what we said in any stage of this pro-
cedure." Smylie told the employees to vacate the premises or the
guards would forcibly remove them. There was no violence. The
strike appears to have been a spontaneous expression of dissatisfaction
with the trend of the negotiations between the Union and the
respondent.
Anderson received notice of the strike shortly before 1 o'clock and
immediately called Sanford on the telephone. Anderson denied Sari-
ford's accusation that the Union had called the strike, and said that
he would do anything in his power to settle it. Sanford refused to
talk to Anderson and turned the telephone over to Michael Richter,
a police captain, who suggested that Anderson come down to the plant
and talk things over. At the plant, Anderson spoke to Healey, reiter-
ated his denial that the Union had called the strike, and repeated
-his offer to negotiate a settlement of the dispute. Healey consulted
Sanford and afterwards informed Anderson that there was nothing he
could do and that the meeting of August 5 was canceled. The evidence
shows that Anderson invoked the assistance of several outside sources
to obtain a settlement of the strike, but that his efforts were unsuccess-
ful, due to Sanford's refusal to meet with the Union representatives.
-In the evening of August 2, Anderson wrote to the respondent stating
that the Union was ready to meet with it at any time or place which
the respondent would designate "in order to mediate the dispute and
through collective bargaining arrive at a mutually satisfactory agree-
ment." The respondent replied to this letter declaring that it believed
the Union had called the strike. It canceled the meeting of August 5,
and asserted that it would not "set any further time for negotiations
until we have had a letter from you informing us as to whether or not
DECISIONS AND ORDERS 545
this strike was instigated, ordered or approved by your Union or
officials of the Union." The Union alleged that its failure to reply
to this letter was due to a feeling that the respondent desired to use
any reply it might make to enable the respondent to alienate the
employees from the Union.
The strike lasted until August 25, 1937, during which time the plant
was shut down and constantly patrolled by guards and picketed by
striking employees. According to the testimony of Nicholas Andrettw,
employed by the respondent for about 7 years prior to the strike, of
Carmela Tesora, employed about 9 years, and of James Landriscina, a
Union organizer, the guards bought lunches and beer for the girls.
They continually rebuked the pickets, calling them "damn fools to
keep out so long," urging them to go back to work, and claiming "the
employees were only wasting their time," and "they were going to lose
the strike anyway because the boss had no intentions whatsoever of
bargaining with union officials." The guards to whom these state-
ments were attributed did not testify. It is alleged that Healey told
the pickets that "there was no way they could win the strike 'because
the Union was no good. They was a racketeer and they were satisfied
to close up the plant than'to talk to the Union," and "that they were
going to close the plant and take the machinery down to Philadelphia.`
Healey denied making these statements and claimed that he had never
requested the employees to return to work, but in the light of all the
evidence, we cannot credit this portion of Healey's testimony.
The respondent reopened its plant on August 25, and sent letters to
its employees requesting them to return to work and informing them
that "the Company has arranged to provide all available means of
protection to its employees in and out of the plant and will use all
necessary legal methods to insure the rights of its employees to work
unmolested." The employees drifted back to work from August 25
until September 20. On or about August 27, in reply to an anonymous.
telephone call, Healey met William McGann and two other employees
in the Y. M. C. A. They expressed a desire to return to work, but
stated that they were afraid to do so. They asked if it would be "post
sible for us to have our bargaining committee and do' our own negoti-
ating with you people." Healey said they could have their.bargaining
committee if they obtained a majority. He then arranged for their
transportation to and from work. A few days after his return to
work, McGann, upon making further inquiries, was directed by Healey
to form a committee which could be,demonstrated to represent a ma-,
jority of the employees. Shortly thereafter, McGann reported that a
"group" of employees had elected a committee, of which he was a mem-
ber, and wanted to know what steps to take to. gain recognition.
Z46 NATIONAL LABOR RELATIONS BOARD
Healey referred him to Sanford for assistance in drawing the form 4
which Sanford prepared and dictated. It was circulated by McGann
on or about September 9, 1937, and returned with approximately 110
signatures besides those of the 8 members of The Collective Bargaining
Committee of the National Licorice Company. On or about Sep-
tember 3 the respondent held a "victory party" at its plant for the
benefit of the employees who had returned to work. Beer and other
refreshments were served.
The Committee sought to bargain with the respondent on Septem-
ber 10, 1937. (It does not appear that any question was raised as to
the authenticity of the signatures on the petition nominating the Com-
mittee to bargain for the employees.) The Committee asked what
could be done in the way of increased wages. The respondent read
and explained to them the terms of a form of contract which it is
alleged the officers of the Company had prepared. The concessions
in^ the contract were in substance the same as those offered to the
employees in the conferences of July 20 and July 29.
The Committee's only requests related to pay for holidays and re-
duction of the contract terms from 5 to 3 years. The contract, in
substance, provided for a 5-per cent increase in pay, entitled the
employer to place any of the employees on a piece-work basis, gave
employees a 40-hour week, a week's vacation between June 1 and
July 20, 1938, and time and one-quarter for overtime, empowered the
employer to discharge employees for any reason, regardless of union
affiliation, permitted an employee to join any union but precluded
him from demanding a closed shop or a signed agreement or striking
until July 10, 1940, and prevented solicitation of memberships on
company property or time. The contract required the signatures of
the respondent, the Committee, and the individual employee. The
Committee circulated mimeographed copies of the contract, which
were signed in duplicate and returned to the respondent.
+ Respondent Exhibit No. 10 :
,SEPTEMBER 9, 1937.
NATIONAL LICORICE COMPANY,
106 John Street, Brooklyn, N. Y.
Attention : Mr. D. D. Sanford , President
GENTLEMEN : We, the undersigned employees of the National Licorice Company, hereby
notify you that we have this day elected a committee of our fellow workers , whose signa-
tures are affixed hereto , as our representatives in collective bargaining with you. We
authoiize these representatives to enter into and sign a contract with the employer pro-
vided it contains substantially the provisions outlined to us by the Management.
You are also notified that the authority given to our fellow workers to represent us In
collective bargaining supersedes any authority that any of the undersigned may have
given to any other group , organization or individual , and no one except the collective
bargaining committee consisting of our fellow workers is authorized to represent us in
collective bargaining.
Very truly yours,
COMMITTEE.
DECISIONS AND ORDERS 547
On or about September 20, 14 employees, desiring to return to work,
met with the Committee in Sanford's office. Frank J. Garone, em-
ployed in the plant 8 years, inquired as to whether or not any of the
14 would be, placed on the Committee. He was informed that he
would have to see Mr. Sanford. When Sanford came into the room,
Garone said, "Mr. Sanford, the simple reason is this why we want one
of us to, be on that committee, we are afraid we might be left out in the
cold. We don't know what is going on in' the shop." Sanford re-
plied, "I am sorry, the committee has been picked already. There is
enough- right now on the committee." This testimony was substan-
tiated by Healey. Subsequently, McGann was asked by Garone to,
inquire about a raise for him, to which McGann replied, "We can't,
argue for you." According to Carmela Tesora, Sanford told the 14-
returning employees that "he would not protect our jobs and that.
we would not get that five per cent if we didn't sign." It was stipu-
lated that several other witnesses would testify to the same effect.
Tesora further testified that it was her present. wish to be represented
by the Union.
The evidence discloses that a number of picketers were arrested
during the strike, and that charges were dropped with respect to
all but two. Carmela Tesora claimed that Healey agreed to drop the
charges if she would return to work. . She returned to work and the,
charges were dropped.
B. Interference, restraint, and coercion
Immediately upon receiving the Union's telegram of July 14, the
respondent started an active campaign in an effort to induce its em-
ployees not to permit an outside union to represent them for the pur-
poses of collective bargaining. The respondent's superintendent un-
successfully attempted to obtain the appointment of a committee to,
supersede the Union. The selection by the respondent, on or about
July 20, of a committee of the employees, who were to acquaint the
employees with an offer from the respondent, failed in its endeavor
to discourage membership in the Union. Although continuing to
deny the Union recognition, the respondent reluctantly entertained
the Union's requests to negotiate. However, after the strike began,
the respondent categorically refused to meet with representatives of
the Union. There is' evidence that officials, supervisory employees,
and armed guards spoke disparagingly of the Union, threatened to
close and move the plant, and offered gratuities to the pickets in their
efforts to halt the strike and induce the employees to return to work.
The respondent encouraged the preparation of and drafted the peti-
tion circulated on or about September 9, nominating the Committee
to supersede the Union as the collective bargaining agency of the em--
548 NATIONAL LABOR RELATIONS BOARD
ployees. The Committee chosen was dominated by Sanford and used
by him to obtain the signatures of the employees to the individual
contracts. As a condition of reemployment, the returning employees
were required to sign individual contracts. From the foregoing, we
must conclude that the officials, supervisory employees, and other
agents of the respondent pursued a course of coercion, intimidation,
and interference clearly designed to discourage and restrain its em-
ployees from affiliation with an outside union.
We find, therefore, that the respondent has interfered with, re-
strained, and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
C. Domination of and interference with the Committee; the signing
of individual contracts
The respondent assumed an active role in furthering the creation
and development of the Committee. Healey advised McGann, ob-
viously inexperienced in labor matters, as to the modus operandi of
forming the Committee. Sanford dictated the petition which was
circulated selecting the Committee. The signatures on the petition
were not challenged by the respondent, and no further proof was
demanded of the Committee as to whether it represented a majority
of the employees. This action is in marked contrast to the incredulity
with which the respondent in the first instance received the claim of
the Union that it represented a majority of the employees in the re-
spondent's plant. When Garone sought representation on the Com-
mittee for the 14 employees returning to work on September 20, he
was informed by McGann that it was a matter for Sanford's deter-
mination. When he sought a raise in wages, a member of the Com-
mittee referred him to Sanford. It appears conclusively that ultimate
control of the activities of the Committee rested with Sanford.
The contract is directly between the respondent and the individual
employee, and under it the Committee, as such, has no rights or
duties. The Committee actually functioned only for so long as it
was necessary to obtain the individual signatures on the contracts.
So far as the record shows, its activities ceased thereafter.
The record fails to disclose what demands, if any, were presented
by the Committee. The changes which it suggested in the contract
proffered by Sanford were relatively of such little consequence that
it may be inferred that the Committee was not unreceptive to the
respondent's idea of obtaining individual contracts with its employees.
The respondent admits that it is a member of the Brooklyn Chamber
of Commerce. Healey testified that he thought that the respondent
consulted L. L. Balleisen, industrial secretary of the Chamber, con-
cerning labor difficulties. It is therefore significant that the respond-
DECISIONS AND ORDERS 549
ent, should have offered to its employees a contract almost -identical
in form with contracts emanating from Balleisen and considered by
us in a number of cases heretofore decided.5 We have held these
contracts to be discouraging to membership in a labor organization
and invalid. The benefits of the contract under consideration were
limited to those employees who signed. In return, the signers re-
linquished the right to strike and the right to demand a closed shop
or signed agreement with any union. They also agreed to accept
a procedure not necessarily involving the Union in the settlement of
labor disputes, thereby eliminating the Union as a possible agency
for collective bargaining.
The actions of the respondent's officials in 'advising the employees
to elect representatives, prepare demands, and meet with the manage-
ment initiated the organization of the Committee. In exercising
its authority over the Committee and directing its activities, the
respondent dominated the administration of the Committee.
Upon the basis of the foregoing facts, we find that the respondent,
by its officers and, agents, sponsored and dominated the formation
of the Committee and thereafter dominated its administration and
contributed support to it. By these acts and by the limitations on
union activity imposed by the individual contracts we further find
that the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed in Section 7 of the
Act.
D. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that all the respondent's employees engaged
in receiving, manufacturing, packing, and distribution of the re-
spondent's products, exclusive of clerical and supervisory employees,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the Act. This allegation
is not denied in the respondent's answer and remains uncontroverted
upon the record.
The president of the Union testified that those employees engaged
in receiving, manufacturing, packing, and distribution of the re-
spondent's products are production employees, and contends that all
production employees, including working foremen, but excluding
executive, supervisory, and office employees, salesmen, and truck
5 See Matter o f Atlas Bag and Burlap Company, Inc, 1 N. L. R. B. 292; Matter of
Hopwood Retinning Company, Inc, 4 N. L R B 922; Matter of Cating Rope Works, Inc.,
4 N. L. R . B. 1100 ; Matter of Metropolitan Engineering Company, Inc., 4 N L. R B. 542;
Matter of The Jacobs Bros Co, Inc, 5 N. L . R B. 620; Matter of Federal Carton Cor-
poration and Printing Pressmen 's Union No . 51, 5 N. L. R. B. 879 ; Matter of David E.
Kennedy, Inc, 6 N. L R. B. 699.
550 NATIONAL LABOR RELATIONS BOARD
drivers, should be included in the appropriate unit. This contention'
is unopposed by the respondent or the Committee.
We find, therefore, that all the production employees of National
Licorice Company, at its Brooklyn, New York, plant, including
working foremen, but excluding executive, supervisory, and office
employees, salesmen, and truck drivers, constitute a unit appropriate
for the purposes of collective bargaining, and that such a unit insures
to employees the full benefit of their right to collective bargaining
and otherwise effectuates the policies of the Act.
2. Representation by the Union of the majority in the appropriate unit
Although no pay roll was introduced, the undisputed evidence indi-
cates that on or about July 14. 1937, and until- the strike on August 2T
1, 937, there were approximately 135 or 140 employees in the -appropri-
ate unit. On the evening of July 14, 1937, 99 employees had signed
applications for membership in the Union. By August 3, 1937, this
number had been increased to 121. Applications for membership in
the Union were received in evidence over the objection of the respond-
ent, who claimed that they had not been properly identified. Lan-
driscina testified that all the applications had been signed in his pres-
ence and that he was "familiar with the names of the individuals"
signing. The respondent introduced no evidence to substantiate its.
contention that the signatures were not those of the persons they pur-
ported to be, despite the fact that such evidence, if it existed, was
available to and within the control of the respondent. On the other
hand, it appears that on July 28, 1937, at the conference between the
parties at the Regional Office, Sanford admitted that the Union repre-
sented a majority of the respondent's employees and agreed to meet
with its representatives for the purposes of collective bargaining.
Accordingly, under the circumstances, we conclude that the signatures
on the application blanks are authentic, and we find that on July 14,,
1937, and at all times thereafter the Union was the duly designated
representative of a majority of the employees in the appropriate unit.
By virtue of Section 9 (a) of the Act it was, therefore, the exclusive'
representative of all of the employees in such unit for the purposes
of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of work.
3. The refusal to bargain
The respondent admitted that it called the meetings of the employ-
ees as a result of the Union's telegram of July 14 and the visit of the
Union representatives of July 20. That its attitude toward an outside
union was antagonistic is clearly exhibited by the attempts of the
DECISIONS AND ORDERS 551_
respondent 's officials to influence the employees to select a bargaining
committee within the plant, by their statements that they would not
recognize an outside union, by the respondent 's failure to respond to,
the telegram of July 14, and by the summary treatment of the Union,
representatives in the conference of July 20 . When the respondent
finally consented to meet with representatives of the Union on July 29,
the discussion that ensued was completely dominated by Sanford.
The Union officials were to all intents and purposes relegated to the.
position of bystanders and were permitted scant opportunity to pre-
sent their demands. Sanford said he would not recognize the Union,
but would permit the results of the conference to be conveyed to the
employees , who would be required to sign individual contracts of
employment . The terms offered were essentially the same as those
previously offered to the employees and rejected by them and those
incorporated in the individual contracts subsequently signed by the
employees .. Healey was asked on cross -examination :
Q. So that on the 29th at the conference and in the conference
with the officers themselves had before drawing up this contract,
the Company was opposed to setting a signed agreement with any
union?
A. That is right.
The record shows that the Union attempted to continue negotiations
following the conferences of July 29 and August 2, but the respondent
resisted all efforts to effect a settlement of the strike and bargain
collectively.
The respondent urges, in justification of its refusal to negotiate with
the Union after the strike of August 2, that the Union called the strike
despite an agreement that it would not call any strikes pending ne-
gotiations following the conference of July 29. The evidence fails
to establish the contention that such an agreement existed. Further-
more, it is conclusively proven that the Union did not call the strike.
The respondent 's allegation that it bargained collectively with the
Union either before or after July 29 cannot be sustained upon the
record. The Act imposes upon employers the duty not only to meet
with the duly designated representative of their employees , but also
to recognize and to bargain in good faith with such representative,
in a genuine attempt to achieve an agreement .' At the meeting of
July 29, the respondent announced that it did not intend to recognize
the • Union . It based its subsequent refusals to negotiate upon the
specious ground that the Union had called the strike . It sought to
eliminate the Union as the collective bargaining agency of its em-
a See Matter of United States Stamping Company and Enamel Workers Union, No,-
18630, 5 N L. R . B. 172.
106791-38-vol vii-36
352 NATIONAL LABOR RELATIONS BOARD
ployees by fostering the Committee and imposing individual con-
tracts upon its employees. These facts, considered in conjunction
with the respondent's conduct at its meetings with the representa-
tives of the Union, compel the conclusion that the respondent did
not recognize or bargain in good faith with the Union. The position
,of the respondent throughout its dealings with the Union constituted
an evasion of its duties under the collective bargaining provisions
of the Act. By its conduct it foreclosed any bona fide consideration
of the various terms and conditions of employment which were pro-
posed by the representatives of the Union.
We find that on July 20 and 29, 1937, and thereafter, the respond-
ent refused to recognize and to bargain collectively with the duly
designated representatives of a majority of its employees in a unit
appropriate for the purposes of collective bargaining in respect to
wages, rates of pay, hours of employment, and other conditions of
work.
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 respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and have led and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since the respondent has engaged in unfair labor practices, we
shall order the respondent to cease and desist therefrom.and to take
certain affirmative action designed to effectuate the policies of the
Act and restore as nearly as possible the condition that existed prior
to the commission of the unfair labor practices.
We have found that the respondent dominated and interfered with
the formation and administration of the Committee and contributed
support thereto. In order to remedy this unlawful condition the
respondent must withdraw all recognition from the Committee as an
organization representative of the respondent's employees for the
purposes of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, and other
conditions of employment. We will, therefore, order the immediate
disestablishment of the Committee as such representative.
We have previously found that the limitations on union activity
imposed by the contracts interfered with, restrained, and coerced
the -respondent's employees in the ' exercise of their rights to self-
DECISIONS AND ORDERS 553
torganization and collective bargaining.- Such contracts are neces-
sarily void as contrary-to the provisions of the Act. Moreover, these
contracts are void on other grounds, namely, the character of the
instrumentality through which they purported to be negotiated and
the means by which the signatures of the employees were obtained.
The Committee was under the domination of the respondent and was
therefore not a proper bargaining representative for its employees.
Furthermore, the signatures to the contracts were procured by co-
ercion and intimidation. The respondent must cease to give effect
to its contracts with its employees and the Committee.
- The respondent urges that the Union is no longer the collective
bargaining agent of the employees of the respondent, since by the
petition of September 9, 1937, the Union's authority was superseded
when the employees designated the Committee as their agent. We
find this argument to be without merit. Since the petition was
,drawn by the Company and circulated at its, instance in order to
effectuate the illegal acts of the respondent, we find that the petition
has no significance as an expression of the employees' choice of an
agency for collective bargaining. To give effect to the policies of
the Act the Board must disregard the continuing effects of the unfair
labor practices and, in restoring the status quo, base its order upon
the majority existing on the date of the refusal to bargain.
Upon the basis of the foregoing findings of fact and upon the
entire record in this proceeding the Board makes the following :
CONCLUSIONS OF LAW
1. Bakery and Confectionery Workers International Union of
America, Local Union No. 405, and The Collective Bargaining Com-
mittee of National Licorice Company are labor organizations within
the meaning of Section 2 (5), of the Act.
2. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1), of the Act.
3. The respondent, by dominating and interfering with the forma-
tion and administration of, and by contributing support to The Col-
lective Bargaining Committee of National Licorice Company has en-
gaged in and is engaging in unfair labor practices within the meaning
of Section 8 (2), of the Act.
4. All the respondent's production employees at its Brooklyn, New
York, plant, including working foremen, but excluding executive,
supervisory, and office employees, salesmen, and truck drivers, consti-
554 NATIONAL LABOR RELATIONS BOARD
tute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
5. Bakery and Confectionery Workers International Union of
America, Local Union No. 405, was on July 14, 1937, and at all times
thereafter has been the exclusive representative of all the employees
in such unit for the purposes of collective bargaining, within the mean-
ing of Section 9 (a) of the Act.
6. By refusing and continuing to refuse to bargain collectively with
Bakery and Confectionery Workers International Union of America,
Local Union No. 405, as the exclusive representative of its employees
in the above-stated unit, the respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (5),
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices-
affecting commerce within the meaning of Section 2 (6) and (7), of-
the Act.
ORDER
Upon the basis of the 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 respondent,
National Licorice Company, and its agents, successors, and assigns,
shall :
1. Cease and desist :
(a) From in any manner dominating or interfering with the ad-
ministration of The Collective Bargaining Committee of National
Licorice Company or with the formation or administration of any
other labor organization of its employees, and from contributing
financial or other support to The Collective Bargaining Committee
of National Licorice Company or any other labor organization of its
employees ;
(b) From recognizing The Collective Bargaining Committee of Na-
tional Licorice Company as the representative of any of the employees
for the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or condi-
tions of work;
(c) From giving effect to its contracts with The Collective Bar-
gaining Committee of National Licorice Company and its individual
contracts of employment with its employees;
(d) From refusing to bargain collectively with Bakery and Con-
fectionery Workers International Union of America, Local Union No.
405, as the exclusive representative of its production employees at
its Brooklyn, New York, plant, including working foremen, but ex-
DECISIONS AND ORDERS 555
eluding executive , supervisory , and office employees , salesmen, and
truck drivers;
(e) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organiza-
tion , to form, join, or assist labor organizations , to bargain collec-
tively through representatives of their own choosing and to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection , as guaranteed in Section 7 of the
National Labor Relations Act.
2. Take the following affirmative action which the Board finds will
,effectuate the policies of the Act :
(a) Withdraw all recognition from The Collective Bargaining
-Committee of National Licorice Company as the representative of any
of its employees for the purpose of dealing with the respondent con-
cerning grievances , labor disputes , wages, rates of pay, hours of em-
ployment, or conditions of work, and completely disestablish The
,Collective Bargaining Committee of National Licorice Company as
such representative;
(b) Personally inform in writing the members of The Collective
Bargaining Committee of National Licorice Company and each of its
employees who has signed an individual contract of employment,
that such contract constitutes a violation of the National Labor Rela-
tions Act and that the respondent is therefore obliged to discontinue
such contract as a term or condition of employment ; and the
-employees are released from its obligations and the respondent will
no longer demand its performance;
(c) Upon request bargain collectively with Bakery and Confec-
tionery Workers International Union of America , Local Union No.
405, as the exclusive representative of its production employees at its
Brooklyn, New York, plant , including working foremen , but exclud-
ing executive , supervisory , and office employees , salesmen , and truck
drivers, in respect to rates of pay , wages, hours of employment, and
other conditions of employment , and, if an understanding is reached
on any of such matters, embody said understanding in an agreement
for a definite term to be agreed upon, if requested to do so by said
Union ;
(d) Immediately post notices to its employees in conspicuous places
throughout the respondent 's Brooklyn, New York, plant, and main -
tain such notices for a period of at least thirty ( 30) consecutive days
from the date of posting , stating ( 1) that the respondent will cease
and desist as aforesaid; (2) that The Collective Bargaining Com-
mittee of National Licorice Company is disestablished as the repre-
sentative of any of its employees for. the purposes of dealing with it
556 NATIONAL LABOR RELATIONS BOARD
with respect to grievances, labor disputes, wages, rates of pay, hours.
of employment, or conditions of work, and that the respondent will
refrain from recognition thereof; (a) that the individual contracts
of employment entered into between the respondent and some of its
employees are in violation of the National Labor Relations Act and
void and of no effect; and that the respondent will no longer offer,
solicit, enter into, continue, enforce, or attempt to enforce such
contracts with its employees;
(e) 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.
I