The Federbush Co., Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1940

24 N.L.R.B. 829 (N.L.R.B. 1940)

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