Arthur F. Derse, Sr.

National Labor Relations Board - Board Decisions

Oct 21, 1968

173 N.L.R.B. 214 (N.L.R.B. 1968)

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arthur F. Derse, Sr., President , and Wilder Mfg. Co.,
Inc. and Textile Workers Union of America,
AFL-CIO. Case 2-CA-10823
October 21, 1968
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On September 22, 1966, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that the Respondent Company
had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
Company had not engaged in certain other alleged
unfair labor practices, and dismissed the complaint as
to these allegations. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed a brief
in support of the Trial Examiner's Decision and an
answering brief to Respondent's exceptions and brief.
The Boards has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions, and the briefs,
and the entire record in this case and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, only to the extent consistent
herein.
As the Trial Examiner found, on the morning of
October 12, 1965, Union representatives Cohen and
Hissam met with Walter Derse, secretary and general
manager of Respondent Company, claiming to repre-
sent a majority of its production and maintenance
employees and made a demand that the Company
recognize the Union as the bargaining agent of these
employees. The three men went into Derse's office
whereupon Cohen repeated the demand for recogni-
tion and thrust 11 signed authorization cards in front
of Derse Derse replied that the Company was a
corporation and he had no authority to answer the
demand. Cohen continued to press for an answer and
Derse replied that the officers of Respondent Com-
pany2 would meet the next night and that the Union
would have an answer on the day following.
The testimony is disputed as to whether or not
Derse examined the cards. Derse testified that he did
not pick up the cards, but that he shoved them aside
and saw some signed cards and some blank cards.'
Cohen testified that Derse went through the cards and
was scrutinizing them throughout the conversation.
Hissam testified that Derse picked up the cards and
went through them one by one. Based on credibility
resolutions, the Trial Examiner found that Derse did
examine the cards We find no reason to overturn the
Trial Examiner's finding on this point.
Shortly after the conversation that same morning,
the 11 employees who had signed cards stopped work
and set up a picket line.' For approximately 8
months at least some of the employees continued to
picket Respondent's plant.
On October 13, the officers of Respondent Com-
pany held a meeting and came to a decision that the
Union did not represent a majority of its employees
based on Derse's statement to his fellow officers that
the Union had 10 or 1 I cards and Respondent had 30
employees.' They then decided to retain labor
counsel. On October 25, Union representative Ruben-
stein asked Derse if he had made a decision. Derse
replied he had no comment to make and handed the
representative a slip of paper with the name of the
labor counsel on it. Rubenstein contacted the
Respondent's attorney on October 27, and was told
that the attorney had received no instructions from
his client. The Union subsequently renewed its
bargaining requests, but heard nothing further from
Respondent.
The Trial Examiner found that the Union's major-
ity status was proved when the Union, on October 12,
presented Respondent with signed authorization cards
from a majority of the employees in the unit and
those employees struck and commenced picketing
upon Derse's failure to grant the Union's initial
demand In the circumstances, the Trial Examiner
further found that Respondent could not have had a
good-faith doubt of the Union's majority status and,
therefore, that it violated Section 8(a)(5) of the Act
by its failure to recognize the Union. We do not agree.
The Board has made clear that to establish that an
employer's failure or refusal to grant recognition to a
union on the basis of a card showing violates Section
8(a)(5), the General Counsel has the burden of
proving not only that a majority of employees in the
t Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended , the National Labor Relations Board has
delegated its powers in connection with this case to a three -member
panel
2 Derse's two brothers and his father own all the stock of
Respondent Company and are its officers
3 Cohen testified that two blank cards were included because two
employees indicated that they were going to sign , but the Union hadn't
as yet obtained their signatures
4 Two more employees signed authorization cards and joined the
picket line the next day.
5 The Trial Examiner found that the appropriate unit consisted of
18 employees and that on October 12 Respondent Company knew that
the Union represented an uncoerced majority of its employees in a unit
appropriate for the purposes of collective bargaining by reason of
Derse's examination of the union authorization cards and because the
officers of Respondent Company observed and knew that a majority of
its employees in such a unit had ceased work and were on a peaceful
picket line patrolling the Company 's premises.
173 NLRB No. 30
ARTHUR F
appropriate unit designated the Union as their
bargaining representative, but also that the Employer
in bad faith declined to recognize and bargain with
the Union. This is usually based on evidence indi-
cating that the Employer has completely rejected the
collective-bargaining principle or seeks to gain time
within which to unlawfully undermine the Union and
dissipate its majority.6
In the present case, however, there is no showing
whatsoever that Respondent had rejected the
collective-bargaining principle or engaged in any inter-
ference, restraint, or coercion of employees to under-
mine the Union. Nor does the record show that
Respondent has engaged in any other conduct which
would prevent the holding of a fair election. We
conclude, therefore, that the record does not prepon-
derantly establish Respondent's bad faith in refusing
to recognize the Union, and we shall dismiss the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
6 Joy Silk Mills , Inc., 85 NLRB 1263 , enfd 185 F 2d 732
(C A D C.) Compare , however , Snow & Sons , 134 NLRB 709, enfd
308 F 2d 687 (C A 9)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner Upon a charge' filed
by the Textile Workers Union of America, AFL-CIO, herein
called the Union, the General Counsel of the National Labor
Relations Board, herein called the Board, on behalf of the Board
by the Regional Director for Region 2 on May 9, 1966, issued an
amended complaint and notice of hearing naming as the
Respondents, Arthur F Derse, Sr ,2 President, and Wilder Mfg.
Co , Inc , herein referred to sometimes as the Respondent
Company or Respondent Employer. The amended complaint
alleged that the Respondent had engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and 8(a)(5) of the National Labor Relations Act, as
amended, herein called the Act. The Respondent denied the
allegations of the amended complaint by answer timely filed
The foregoing case came on to be heard before me on June 7,
8, 9, 29, 30 and July 1, 1966, at Port Jervis, New York At the
hearing each party was afforded a full opportunity to be heard,
to call, examine, and cross-examine witnesses, to argue orally
upon the record, to submit proposed findings of fact and
conclusions of law, and to file briefs. All briefs have been
reviewed and considered by the Trial Examiner
I The charge was filed on November 4, 1965.
2 Arthur F Derse , Sr owns a majority of the stock of the Wilder
Mfg Co , Inc His three sons , Arthur F . Derse, Jr., Robert Derse, and
Walter Derse , own the remaining shares.
DERSE, SR. 215
The principal question before the Trial Examiner is whether
the employer was obligated to recognize and bargain with the
Union upon a showing that an uncoerced majority of its
employees in an appropriate unit had designated the Union as
their bargaining agent
Upon the whole record and from his observation of the
witnesses, the Trial Examiner makes the following
FINDINGS OF FACT AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent Company is and has been at all times
material herein a corporation duly organized, and existing by
virtue of the laws of the State of New York, and at all times
material herein the Respondent Company has maintained an
office and place of business at Mechanic Street and Erie
Railroad, in the City of Port Jervis, New York, where it is and
has been at all times material herein engaged in the manufac-
ture, sale and distribution of baking pans, bakeshop equipment
and related products
During the past year, which is representative of its annual
operations generally, the Respondent Company, in the course
and conduct of its business, purchased and caused to be
transported and delivered to its Port Jervis plant, steel and
other goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000 were
transported and delivered to its plant in interstate commerce
directly from States of the United States other than the State
in which it is located
The Trial Examiner finds, as is admitted, that the Respon-
dent Company is now and has been at all times material herein
engaged in commerce within the meaning of Sections 2(6) and
(7) of the Act and that it will effectuate the policies of the Act
to exercise jurisdiction herein 3
II THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A. The Alleged Violations of Section 8(a)(1) of the Act
The sole admissible evidence cited by the General Counsel
in support of the contention that the Respondent Company
violated Section 8(a)(1) of the Act is the following testimony
of employees Jack Munoz and Charles Shaw From the
testimony of Jack Munoz
. . Walt said to tell us that any time we wanted to go back
we could come back and send a committee of two men to
go talk to Walt 4
From the testimony of Charles Shaw:
Well I went down to get a couple of tires for my car from
the locker room and we got on talking about the plant and
he said there were some changes made that they had coffee
breaks now that we didn't have before, and that the merit
3 The Trial Examiner deems it unnecessary for the purposes of this
decision to resolve whether Arthur Derse, Sr., is an employer within the
meaning of the Act
4 The General Counsel contends that this statement "constitutes an
attempt to by-pass the employees ' representative "
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
system was throwed out and that they were getting paid
overtime for Saturdays ....5
Both statements were attributed to Supervisor William
DeGraw
A strike occurred at the Company's establishment on
October 12, 1965. Picketing continued for about 5 or 6
months thereafter
DeGraw testified that about 2 weeks after the strike
commenced, as he was on his way with his family to pick
apples at his father-in-law's place, he saw Munoz' automobile
parked at his home, he stopped to visit with him While there,
the DeGraws picked apples, discussed deer hunting and
football and watched a part of a football telecast During the
course of the visit DeGraw asked Munoz "if he were going
back to work" Munoz answered, "No, not without a union."
Munoz' testimony varied little from that of DeGraw except
Munoz attributed to DeGraw the remarks set out above, to
wit:
... Walt said tell us that any time we wanted to go back we
could come back and send a committee of two men to go to
talk to Walt.
DeGraw specifically denied that he had made these remarks
Munoz agreed that he and DeGraw were friendly and visited at
each other's homes The visit lasted between 20 minutes and a
half hour
Employee Charles Lincoln Shaw, prior to the strike, had
purchased an automobile from Supervisor DeGraw. Some time
during March 1966 Shaw visited DeGraw for the purpose of
picking up a "couple of tires" which belonged to the
automobile. According to Shaw, he asked DeGraw whether it
would be alright if he returned to work DeGraw responded
that he did not believe that Shaw would be fired and he could
return to work if he "wanted to " According to DeGraw Shaw
asked him whether "there was any chance of his coming back
to work." DeGraw answered that "any one of the striking
employees could come back to work, that the door was
opened " Shaw responded, "Fine, probably be back on
Monday " DeGraw testified that Shaw also asked him if any
changes had been made at the plant DeGraw also testified that
the parties had discussed overtime work
Credible testimony indicated that the only change effected
during the strike period was the establishment of a breaktime
Prior to the establishment of such break time employees were
permitted to obtain a cup of coffee at any time during the
workday and if they wanted to smoke "they would go to the
mens room." As early as September 1964, DeGraw had
recommended established breaks in lieu of this practice,
however, established breaks could not be put into effect
because the Respondent Company did not have a smoking
permit from the State Department of Labor. Application was
made for such a permit on October 12, 1964. The permit was
granted after an appeal on July 1, 1965, upon condition that
"[s]moking shall be permitted during the coffee break and
lunch period " In accommodating the condition the Company
5 The General Counsel contends that this statement "amounts to an
attempt to induce Shaw and the other strikers to cease picketing by an
offer of benefits."
6 The Trial Examiner has considered all evidence in the Record
involving DeGraw.
7 The card contained the following language "I hereby accept
membership in the Textile Workers Union of America of my own free
will and do hereby designate said Textile Workers Union of America as
my representative for the purposes of collective bargaining in respect to
rates of pay , wages, hours of employment and other conditions of
was required to make certain alterations in its plant to provide
an approved smoking area for its employees These alterations
were commenced in the latter part of 1965 and completed in
the early part of 1966 Two 10-minute coffeebreaks, one in
the morning and the other in the afternoon, were then
established.
The record is barren of any credible evidence that the
"merit system was throwed out" or that there was any change
in pay for Saturday overtime. Thus the record is lacking in
proof that the employer did attempt to induce strikers to cease
picketing by an offer of benefits and hence it is highly unlikely
that DeGraw would have made the representations which were
attributed to him by Shaw. Moreover, as between DeGraw and
Munoz and Shaw the Trial Examiner credits DeGraw In
reaching this conclusion the Trial Examiner has considered the
nature of the testimony, the demeanor of the witnesses, the
environment in which DeGraw's remarks were uttered, and the
fact that the employer's policy was clearly one of avoiding the
commission of any unfair labor practices. Measured by the
allowable rights granted under Section 8(c) of the Act, the
Trial Examiner cannot find that by DeGraw's conduct, as
detailed in the Record6 the Respondents violated Section
8(a)(1) of the Act. Dismissal of all allegations of the amended
complaint based upon the alleged misconduct of Supervisor
DeGraw is recommended
B The Alleged Violation ofSection 8(a)(5) of the Act
1 The Union's showing of interest
William Hissam, a representative of the Union, met with 11
employees of the Respondent Company at his home on the
evening of October 11, 1965 Present were Dominick Cali-
ciotti, James Ehre, Fredrick J Hicks, Harman B. Masker,
Michael J Molloy, Jack Munoz, Joseph Munoz, Arthur I.
O'Hara, Charles L Shaw, James E Stempert, and Harold D
Vandermark At the meeting each of the 11 employees signed
a union authorization card? and approved a motion by signing
his name below the following language "Upon asking em-
ployer for recognition, and upon his refusal there is a motion
among the people present to go on strike "
On October 12, 1965, these 11 cards were presented to
Walter Derse, secretary and general managers of the Respon-
dent Company, who thereupon did not recognize the Union as
the statutory bargaining agent of its employees. Upon being so
advised the 11 employees, who had reported for work on the
morning of October 12, 1965, left their jobs and set up a
peaceful picket line in the vicinity of the Respondent
Company's premises.
The Trial Examiner finds that on October 11, 1965, 11
employees of the Respondent Company had designated and
selected the Union as their bargaining agent.
On October 12, 1965, H. Hernsdorf of his own free will
signed a union authorization card9 in response to a request by
employment ." Signatures on the cards were properly authenticated for
the record either by the acknowledgment of the signers under oath or
by the credible testimony of a witness who observed the signing of the
card.
8 As general manager, Derse testified that he was responsible for
"the entire operation , the sales, the advertising, production and all
problems relating to anything of this nature "
9 There is no competent credible proof that Hernsdorf was coerced
into signing the card on October 12, 1965
ARTHUR F DERSE, SR
a picket as he left the employer's plant at noon. Hernsdorf
joined the picket line and picketed on October 12 and the
following day. He remained away from work for several
months thereafter
On October 12, 1965, Irving Hughson signed a union
authorization card "[b] y the picket line " Thereafter Hughson
remained away from work until January 20, 1966
The Trial Examiner finds that by the afternoon of October
12, 1965, 13 of the Respondent Company's employees had
designated and selected the Union as their bargaining agent.
2. The appropriate unit
The amended complaint alleges that the appropriate unit
for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act is
All production and maintenance employees of Respon-
dents, employed at its Port Jervis plant, exclusive of
draftsmen, office clericals, plant clericals, guards, watch-
men, professional employees and all supervisors as defined
in Section 2(11) of the Act
The parties stipulated that there were 30 employees on the
Respondent Company's payroll as of October 12, 1965, "with
the exception of the executive officers "1 0 By consent of all
parties the following 18 employees appearing on the October
12 payroll were included in a unit of production and
maintenance employees Roger Burcham, Dominick Caliciotti,
James Ehre, Frank Griggin, Hilmut Hernsdorf, Fred Hicks,
Irving Hughson, Harmon Masker, Michael Malloy, Jack Munoz,
Joseph Munoz, Arthur O'Hara, Don Shafer, Charles Shaw,
Allen Smith, James Stempert, Frank Tonkinson, and Harold
Vandermark The parties further agreed that Jack McCaslin,i f
plant manager, and William DeGraw,12 supervisor of the
machine department, should be excluded as supervisors and
that Jean Clark, Shirley Hawkins, and Patricia Somarelli should
be excluded as office clerical employees The Respondent
Company contends that the seven employees remaining on the
payroll list of October 12, 1965, should be included in the
appropriate unit 13 The General Counsel maintains that the
seven employees14 should be excluded from the appropriate
unit
The Respondent Company's plant is located at Mechanic
Street and Erie Railroad, Port Jervis, New York.15 A brick
wall separates the factory or production section of the plant
from the general office area The factory area or section
contains a machine shop, welding department, assembly area,
10 The executive officers of the Respondent Company were Arthur
F Derse, president, Walter Derse, secretary, Arthur Derse, Jr , vice
president , and Robert Derse, treasurer
i l Of McCasim's duties Walter Derse testified , "Jack McCaslin is in
charge of the production department He handles the assembly and he is
over Bill DeGraw . . He is responsible to me and only me."
12 Of DeGraw 's duties Walter Derse testified , "Mr. DeGraw is the
foreman in the machinery department , and takes over in Jack
McCashn's absence , of the entire production "
13 Since the Respondent 's proposed unit is composed of 25
employees it is apparent that the Union on October 12, 1965, held valid
authorization cards ( 13 in number ) for a majority of the employees in
such unit
14 These employees were Chester Swingle, Harold Lauer , Earl Clark,
James Wharton , Francis May , Carol Forbes, and Yvonne Flannery
is Walter Derse described the Respondent Company's business as
follows
We manufacture steel baking equipment We start with raw
material that is in the form of sheets, angle iron . Such finished
hardware as casters, bolts , et cetera
217
machinery area , packing area, receiving area and raw storage,
and warehouse and shipping area The shipping area, ware-
house and receiving area and raw storage are separated from
the remainder of the factory section by a wall. An enclosed
production office is located in the assembly area where
McCashn is located. No clerical type employees are assigned to
the production office The general office contains partitioned
spaces, ceiling high for the president's office, treasurer's office,
secretary's office, vice president's office, accounting depart-
ment and layout department. Bounded on one side by the wall
separating the factory section from the general office and by
the president's office, accounting department, lobby, trea-
surer's office, secretary's office, vice president's office, and
layout department is an area designated as the corridor and file
room Each of the above-mentioned offices and departments
has doors opening into this area
Of the seven employees whose classifications are in dispute
six are assigned to the general office area Swingle works in the
factory area. The three excluded office clericals are also
assigned to the general office area Employees Lauer, Wharton,
and Clark worked in the layout department, May's desk was
located in the corridor and file room adjacent to the layout
department. Clark's desk was located in the corridor and file
room next to the secretary's office door Hawkins' desk was
adjacent to and in front of Clark's desk. Flannery and Forbes
were located at the end of the corridor and file room nearest
the president's office and accounting department Somarelh
worked in the accounting department
The corridor and file room contained file cabinets, desks,
chairs, adding machines, typewriters, a calculating machine, a
Xerox machine, and a storage cabinet. Partitions in this area
were 54 inches high
The general office and factory areas have separate en-
trances Employees working in the general office area normally
use an office entrance while employees working in the factory
area use the factory entrance which opens onto a parking lot
Separate timeclocks are maintained for each group of employ-
ees. Employees working in the factory area wear a different
kind of apparel than those assigned to the office area Office
and factory employees do not work like hours.16 Jack
McCashn, plant manager, who is the senior supervisor over the
employees who work in the factory area , exercises no
supervisory authority over the employees who are assigned to
the general office area. Employees are not interchanged
between the factory area and the office area. Employees in the
This material is sheared and blanked , punch formed , and then
assembled in various ways, either spot welding or electric welding,
Healy arc welding , Baum riveting.
Some items go out unassembled. They get shear knocked down,
and the ultimate form of this equipment is in work benches for
bakeries and ingredients containers and ingredients drawing units,
flour, sugar and items of this nature, pan racks for the storage of
pans and bake goods, dolleys for pans and bulk racks , cabinets for
the raising of doughs and items of that nature.
[hey are basically used in various types of retail or small type
bakery operations or bakery departments . .
16 Derse testified that the production and maintenance employees
punch in at 8 a m. and out at 4 45 p.m. and have 45 minutes for lunch,
that the girls in the office punch in at 8:30 a.m. and out at 5 p m. and
apparently have an hour for lunch, that Lauer, Wharton , and Earl Clark
punch in at 8 a.m. and out at 5 p.m. with an hour for lunch , and that
May punched in at 8 a m., out at 5 p.m., with an hour for lunch.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office area receive their instructions principally from Walter
Derse, Robert Derse, and Arthur Derse, Jr
The duties of Harold Lauer, Earl Clark, and James Wharton.
Lauer, Clark, and Wharton work in the layout department
which was also referred to by Lauer as the engineering and
estimating department Lauer testified that he was "[h] ead of
the engineering and estimating department "i 7 Walter Derse
testified that while the department is under his "command" he
looks to Lauer " to see that the other men [take] care of the
job." Laueri 8 described his duties as follows, "any requisi-
tions19 that I receive from the sales department have to be
processed under my direction Sometimes I do the work of
processing these requisitions, most of it is carried out under
my direction by Wharton and Clark This would mean laying
out20 the jobs, preparing any necessary drawings I also have
to follow through any item, catalogue item, that is under
redesign or is of new design, also any prices of special items,
noncatalogue items or special items. I figure the prices on them
and also the perpetual pricing system that is set up for all
catalogue items is under my direction " Lauer also testified
that he spent his time " [d] elegating the work to be done, 21
checking out what work has been done, checking into new
design provisions, work of that type " Lauer also said he
worked "on planning into designs and designing into equip-
ment."
Lauer is an associate engineer, a graduate of Pennsylvania
State University
Lauer testified that he normally performed his duties'in the
"engineering office" and did not work in the factory areas,
however, upon occasion he went into the plant Occasionally
one of the Derses summoned him to the plant to show him
"something that should be changed on an item or a problem
that [had] arisen " Sometimes he was called into the plant by
McCaslin or DeGraw about a problem These problems were
described by Lauer as "[u]sually a production problem or an
item being made Could be they have to substitute material,
sometimes we run short of material, there could be a mistake
in the engineering layout, there could be a mistake in the
drawing, something of that type " Chester Swingle, who was in
charge of the warehouse, receiving, packing and parts depart
ment, consulted Lauer about packing and bill of parts'
problems Lauer's visits to the plant were brief and intermit-
tent, he noted the problem on a pad and resolved it in the
layout department if it could not be "taken care of immedi-
ately " The record is barren of any evidence that Lauer in the
course of his duties contacted non-supervisory factory per-
sonnel.
Lauer testified that Wharton and Clark work in the
engineering office and each has "their own drafting board with
a drafting machine attached to the board, they have architects
and engineers scales, mechanical drawing pencils, mechanical
sharpeners and any necessary drafting instruments " Lauer said
that they were not "full-time draftsmen" 22 but only per-
17 Lauer testified , " I have two men that work directly under me,
Earl Clark and Jim Wharton "
18 Lauer 's testimony is credited in connection with the functions
and duties of the employees in the layout department
19 A requisition is a form made up by Frank May when items
required to fill a customer's order are either not in stock or when by
filling the order , the number of such items in stock will fall below a
minimum figure
20 Lauer described " layouts" as "necessary papers for men in the
factory to produce catalog items or special items" and entailed "any
cutting sheets , shearing sheets , fill in cards , wood working sheets, any
formed drafting work when the work required drafting to be
performed Besides draftmen's work, Lauer said that Wharton
and Clark "do lay out, filling in the sheets, items to be made "
Clark in addition to job layouts and drafting "takes method
photos" and "catalog photos " Both Clark and Wharton use
drafting machines, scales, dividers, and compasses in the
normal performance of their duties which are performed at
their "own drawing boards" in the "engineering office "
According to Lauer, Clark had no technical schooling in
drafting, his knowledge of drawing and drafting had been
acquired through experience Wharton had mechanical drawing
in school and attended Orange County Community College
where he took a course in drafting
While Clark normally performed his work in the engineering
department at least once a month he went to "the factory to
take any photographs of a particular method or way a job is
done" for engineering recording On these occasions he might
spend 20 minutes to a half hour in the plant Clark also had
occasion to carry papers in reference to a "quickie job" to the
production department These trips consumed a "few min-
utes " Wharton also delivered papers to the production
department for jobs which were not run through a regular shop
order As did Clark's trips, these trips consumed a few minutes
The duties of Frank May Frank May was designated as an
inventory control clerk and maintained the inventory control
file May is responsible to Walter Derse
As orders were received, lean Clark, an excluded clerical
employee, placed them in an order pan where they were
picked up by May who interpreted them and checked them
with the catalogue to make sure that the order was correct
May then made up a return makeup order sheet, checked the
inventory to make certain the items ordered were available by
consulting a master inventory list by his desk, and reserved the
inventory If there were insufficient items in stock to cover the
order or if the order brought the amount of stock below the
minimum or if it was an item made up on order only, May
made out a requisition in longhand which he delivered to the
layout department for Lauer's review The requisition was then
typed by Flannery
When the items were in stock, the order was typed from the
makeup order May then checked the typed copy with the
makeup order and if it was correct he removed the shipping
order copy. Shirley Hawkins, an excluded clerical employee,
typed labels and bills of lading which she delivered to the
shipping department together with the shipping order copy
May occupied a desk adjacent to the layout department
opposite the vice president's office No partition surrounds his
station According to Derse, May spent 75 percent of his time
at his station and the remainder in the plant, however, other
testimony which seems more plausible indicates that May
spent 5 or 10 minutes a day in the plant There is no evidence
that May worked in the factory May's only activities in the
factory described in the record concern his traveling to the
necessary drawings, mechanical drawings , made in proportion "
According to Lauer he reviewed this kind of work and assigned it to
Wharton or Clark When it was completed it was returned to his desk for
checking
21 Lauer testified " I assign their work, what has to be done, I tell
them [Clark and Wharton I what to do first, and if there 's any question
arises while they're doing it , I try to answer that "
22 Lauer defined a draftsman as "either a man or woman having the
knowledge to use a drafting machine, engineer scales and be able to
draw architectural or mechanical scales."
ARTHUR F DERSE, SR 219
shipping area to pick up the shipping department's copy of the
orders together with the first and third copy of the bill of
lading which he brought to his station 23
The duties of Carol Forbes. According to Walter Derse
Carol Forbes was responsible to him although Lauer "makes
sure she carries out the proper distribution of the forms and
makes sure that the operational cards and any papers relevant
to the production are carried out in the right form " Forbes
received envelopes containing orders and layout forms from
the layout department. She then prepared the operational
timecards required for each order and added them to the
documents already in the production envelope Forbes also
was required from time to time to run the Ozalid machine
located in the layout department in order to duplicate
operational timecards Forbes spent approximately 70 percent
of her time preparing the operational timecards She also
prepared method sheets which she received from the layout
department These method sheets are taken by her to the
production office where they were stored
The duties of Yvonne Flannery- Yvonne Flannery was an
inventory clerk for raw materials She was responsible to
Walter Derse She also typed shop orders In performing the
function of inventory clerk for raw materials she entered
shipments received and maintained a master file of raw
materials On occasion she would consult with Plant Manager
McCashn about material, particularly if there was a question
concerning the type of material which had been received
The duties of Jean Clark, Shirley Hawkins, and Patricia
Somarelli 24 Jean Clark Jean Clark who had been employed
by the Respondent Company for a period of 11 years was a
clerk-typist She was the confidential secretary to Walter
Derse In the morning and afternoon she opened the mail and
distributed it She also wrote up sales orders and checked sales
orders written by employee Hawkins. She handled all corre-
spondence Once a day for 5 or 10 minutes she delivered
shipping papers to the shipping and receiving department.
Shirley Hawkins Shirley Hawkins worked in the sales depart-
ment in the general office area She wrote the main part of the
sales order, figured the pricing, handled some correspondence
and typed envelopes On occasion she would take shipping
papers to the shipping and receiving department. Patricia
Somarellt• Patricia Somarelli worked in the accounting depart-
ment. According to Derse she spent the first hour and a half of
every day in the production office checking operation and
payroll cards which were delivered to Carol Forbes for
recording the operation time At the end of the week Somarelh
prepared the payroll from the timecards Somarelli also
prepared accounts payable and receivable, prepared bank
deposits and wrote checks
The duties of Chester Swingle- According to the testimony
of Walter Derse, Swingle was "in charge of the warehouse,
receiving, packing and parts department " Swingle "told
[em iloyees James Stempert and Arthur O'Hara] what to
do" 5 and was "basically" in charge of their activities.
Derse testified that he "looked on [Swingle] as a super-
visor " Swingle and Plant Manager McCaslin were "responsible
for checking final production." Swingle "on occasion" an-
swered to Walter Derse; on other occasions he answered to
McCaslin Swingle received a higher rate of pay than the
employees, Stempert and O'Hara Swingle worked alone about
half of the time When Stempert and O'Hara worked with him,
Swingle also physically worked at packing and shipping
Stempert and O'Hara reported to Swingle each day If Swingle
had no work for them he turned them over to McCaslin
The Trial Examiner is of the opinion that Swingle respon-
sibly directs employees of the Respondent Company and that
the exercise of such authority was not of a merely routine or
clerical nature but required the use of independent judgment
The Trial Examiner finds that Swingle is a supervisor within
the meaning of Section 2(11) of the Act The Trial Examiner is
of the same opinion in respect to Harold Lauer and finds that
Lauer is a supervisor within the meaning of Section 2(11) of
the Act Thus Swingle and Lauer must be excluded from any
unit
As to the other five employees whom the Respondent
would include and the General Counsel exclude from the
appropriate unit, it is the opinion of the Trial Examiner that
they should be excluded from the appropriate unit in that a
community of interest is lacking between these five employees
and the conceded production and maintenance employees Of
controling importance in reaching this conclusion are these
factors (1) no working contacts exist between the five
employees and the production and maintenance employees,
(2) common supervision is lacking, (3) working conditions are
dissimilar, (4) skills and functions of the two groups of
employees differ, (5) substantially all the work of the five
employees is performed in the general office area in close
proximity with excluded office employees and the administra-
tive officers of the Respondent Company, (6) the five
employees are under the same general supervision as the
excluded clerical employees, (7) the five employees perform
work closely related to that of employees usually excluded
from production and maintenance units, (8) the work of the
five employees is not directly integrated with the production
process, and (9) a community of interest prevails between the
five employees and the excluded clerical employees
The Trial Examiner finds that the unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act is
All production and maintenance employees of the Wilder
Mfg Co , Inc employed at its Port Jervis, New York plant,
excluding all other employees, guards and supervisors as
defined in the Act 26
3 The Union's demand for recognition and the Respondent's
refusal to recognize the Union
Between 9 30 and 10 on the morning of October 12, 1965,
Cy Cohen27 and William Hissam, representatives of the Union,
23 Derse testified, "They IMay and McCashn] discuss what may
be coming through the plants, and Frank will then, based upon this
conversation with lack, he will make his moves, so his moves in many
cases are dependent upon what Jack McCaslin tells him."
24 The duties of the excluded clerical employees are reviewed in
order that the unit question may be viewed in full perspective.
25 Derse testified " if he [Swingle] wanted them to pack they
packed , if wanted them to cut up a little they cut up a little "
26 The Trial Examiner considers this unit to be substantially the
same as the unit set forth in the amended complaint.
27 Cy Cohen had been employed by the Union for "[t]wenty odd
years "
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made demand upon Walter Derse that the Respondent Compa-
ny recognize the Union as bargaining agent According to
Derse he arrived at the Company's plant at about "25 minutes
to 10 00" and was advised that a Mr. Cohen wanted to see him
but would not state his business About 5 minutes later Cohen
appeared in the lobby but again would not state his business.
Upon receiving this information from Yvonne Flannery, Derse
went to the lobby Cohen introduced himself and Hissam and
said, "We're from the Textile Workers Union We have
something of material interest " Derse said "What do you
mean " Cohen replied, "We represent a majority of your
employees,28 and we want to know whether you will
recognize us as their bargaining agent." Whereupon Derse
invited Cohen and Hissam into his office where all three sat at
a small conference table, "two and a half feet by four " Cohen
"shoved" the authorization cards in front of Derse but Derse
did not touch them. Cohen repeated the purpose of his visit
and Derse replied, "Mr Cohen, this is a corporation, and I have
absolutely no authority to answer that question." Cohen
inquired, "In other words, you refuse?" Derse answered, "I
didn't refuse I said I did not have authority to answer that
question." Cohen responded, " if you refuse, we'll file
unfair labor practice charges " Derse said, "There's nothing I
can do about it I have no authority " Cohen continued to
press for an answer and Derse said that he "could have an
answer on Thursday"29 at which time his one brother (Arthur
Derse) would have returned from Atlantic City. Derse indi-
cated that the officers of the Respondent Company would
meet on Wednesday night Cohen said, "I can't wait that
long I have to know I will give you an hour Would you
rather have the men wait outside "30 Derse replied, "I can't do
anything about it, I can not answer the question you ask me "
Cohen again "shoved" the cards toward Derse who did not
pick them up Derse testified that he "moved them aside" and
saw some signed cards and some blank cards. Cohen said, "Yes,
there are blanks in there "31 At this point Cohen asked if he
could "talk to the men outside " Derse replied that he had no
authority "to let [him] inside to talk to these men " Cohen
then asked whether he could place a phone call to the men.
Derse explained that emergency calls were permitted. There-
28 Derse denied that the term "production and maintenance
employees" had been used Both Cohen and Hissam testified that Cohen
informed Derse that the Union represented a majority of "production
and maintenance employees " The Trial Examiner credits the testimony
of Hissam and Cohen in this respect as well as the other material
portions of their testimony which is in conflict with that of Derse
These credibility resolutions are not only drawn from the demeanor of
the witnesses, but it seems plausible that a union representative such as
Cohen with "20 odd years" experience would not have overlooked
demanding recognition in a "production and maintenance unit "
29 Derse's affidavit to the Board does not reveal that Derse had told
Cohen that he would have an answer by Thursday In any event the
Union received no answer
30 In his affidavit to the Board Derse averred, "Cohen said he could
not wait until the next day for answer, he could wait an hour or
otherwise he would pull the men out on strike."
31 Cohen testified that he laid the cards on the table in front of
Derse Derse picked them up and "went through them." Derse noticed
two blank cards and "questioned " them Cohen told him that the cards
were "in there because two people . . signified they were going to sign"
and the Union "hadn't been able to get their signatures as yet." Cohen
testified that Derse was "scrutinizing " the cards "all during the
conversation " and that "he put them down once and picked them up
again."
32 Derse testified that he "would judge that there was , including the
blanks, probably fifteen cards," but that he did not know how many
blanks were among them
33 Derse admitted that this statement to Cohen was untrue.
upon Derse "took the cards" and "shoved them back " Cohen
picked up the cards 32 and left It was then about 10 10
At 10 25 a phone call was placed through the plant
switchboard to Jack Munoz At 10 26 the 11 employees who
had signed cards punched out and left the plant At 10 26
Cohen phoned Walter Derse and according to Derse said that
"their boss (Mr Rubenstein) said they could not wait, that
they were going to pull them men out " Derse replied,
"Nothing I could do about it "
Derse testified that by late night of October 12, 1965, he
had contacted all the officers of the Respondent Company
including Arthur Derse, Jr , who had been in Atlantic City and
suggested that they get together on Wednesday night, October
13, 1965
On October 13 at 11 25 am Derse received a telephone
call from Cohen According to Derse, Cohen asked him if he
had made up his mind Derse answered, "No, my brother had
not as yet returned, that I couldn't talk to him,33 that we
would get together that night and I could only answer him the
next night That was the earliest I could tell him." Cohen
wanted Derse again to "agree to recognition " Derse answered
that he "couldn't do it until a decision was made "34
The meeting of the Respondent Company's officers was
held on Wednesday night According to Derse the officers
came to a decision that they doubted the majority based upon
Walter Derse's statement, "It looks to me like about ten or
eleven, and we're thirty-four people Dropping us four as
officers we still have thirty. Now, simple mathematics, eleven
is not a majority of thirty .."35 The officers decided to
retain counsel, a labor specialist 36 Derse contacted and
retained Friedlander, Gaines, and Ruttenberg on October 19,
1965
On October 25, 1965, Derse testified that as he was driving
in the Company's parking lot Jack Rubenstein, a union
representative, asked him whether he had made a decision.
Derse answered, "I have no comment to make" and handed
him a slip of paper with the names and phone number of
Friedlander, Gaines and Ruttenberg Rubenstein was told to
contact these attorneys 37
34 Derse denied that Cohen mentioned that he held two additional
authorization cards . Cohen testified that he called Derse on October 13,
1965 , and asked him if he had heard anything from his brothers Deise
answered , "No." According to Cohen, he told Derse, "As a matter of
form I am asking you for recognition once more I have additional cards
I expected yesterday, I have them to-day " Cohen requested an answer
as "quickly as possible" and suggested that he call Derse later. Derse
replied, "If you want to call, call , if you don 't, don't "
35 Derse testified that he included all the employees in the thirty
"because . what Mr Cohen told me, was that they represented a
majority of our employees " As noted above the Trial Examiner has
found that the Union requested representation in a production and
maintenance unit . Thus there was no basis for Derse 's assertion that the
Union desired to represent all thirty employees Moreover, the Trial
Examiner is not convinced that Derse was so unschooled in labor
matters as to believe that the Union was seeking to represent Plant
Manager McCaslm , Supervisor DeGraw, or the office clerical employees
whom the employer conceded should be excluded from an appropriate
unit. Furthermore at the time Derse's remarks were claimed to have
been made , he was aware that only production and maintenance
employees had joined the strike.
36 Derse had contacted a local attorney on October 12 who told him
he should make no further comment or do anything about the situation
but to seek a competent attorney.
37 Rubenstein testified without contradiction that he contacted the
Respondent Company's attorneys on October 27, 1965, and was told
that the attorneys had received no instructions from their client
Rubenstein heard nothing further from the attorneys.
ARTHUR F. DERSE, SR 221
Between October 13 and October 25 the Respondent
Company did not contact the Union or thereafter The matter
has remained in the same status in respect to union recognition
as it was on October 12, 1965. Throughout the strike the
employer maintained an open door policy toward the strikers.
The Company remained out of production for about 30 days
On December 30, 1965, the employer wrote a letter to the
striking employees in which the employees were reminded
"that the door has always been open for your return " The
letter highlighted the "past performance of the company" in
contrast with the "unfilled promises you have received from
outsiders or strangers " The employer commenced hiring new
employees on January 3, 1966 Seven employees have returned
to work.38 One employee refused to come back because he
wanted more money On January 4, 1966, the employer wrote
the striking employees again reminding them that the "door is
open to you" and that "you have not had to pay dues and
initiation fees to get and keep your job at Wilder " The letter
was closed with the statement "There is no need to loose
further wages while waiting for a satisfactory settlement of the
present problem." The picket line remained for about 5
months within full view of persons passing in and out of the
Company's establishment 39
Upon the basis of the foregoing testimony and in line with
the Trial Examiner's credibility resolutions, the Trial Examiner
finds that on October 12, 1965, the Union presented to the
Respondent Company a claim to be recognized as the
representative defined in Section 9(a) of the Act and that on
such date and thereafter the Respondent Company knew that
the Union represented an uncoerced majority40 of its em-
ployees in a unit appropriate4I for the purposes of collective
bargaining by reason of Walter Derse's examination of the
union authorization cards, and because the officers of the
Respondent Company observed and knew that a majority of
its employees in such unit had ceased work and were on a
peaceful picket line patrolling the Company's premises.42
Thus unless the Respondent Company for some lawful reason
was excused on October 12, 1965, from recognizing and
bargaining with the Union as the statutory representative of its
employees, it became so bound. "An employer is under a duty
to bargain as soon as the union representative presents
convincing evidence of majority support." N L R.B. v. Dahl-
strom Metallic Door Co , 112 F.2d 756, 757 (C.A. 2).
"Convincing evidence of majority support" was presented to
the Respondent employer on October 12, 1965, when the
Union offered for the employer's examination the valid union
designations of a majority of its employees in an appropriate
unit and when a majority of the employer's employees in such
unit engaged in strike and appeared as a peaceful picket line at
its premises The voluntary walk out of a majority of the
employer's employees and their peaceful picketing thereafter
stand in the record as unrebutted notice of the Union's
majority status and a confirmation of the authenticity and
uncoerced character of the union designations. 43 Nevertheless,
although the Union reiterated its demand for bargaining by
letters dated November 3 and 5 and December 27, 1965, and
January 6, 1966, and filed a refusal-to-bargain charge on
December 4, 1965, the record discloses no evidence that the
employer advised the Union of the basis for its failure to
respond to the Union's bargaining demand44 or that the
employer sought to avail itself of the provisions of Section
9(c)(1)(B) of the Act 45 Under these circumstances, as was
said in N.L.R.B. v Preston Feed Corporation, 309 F.2d 346,
351 (C.A. 4) ". . . it is a little short of absurd for an employer
to express doubt as to representative status of a union when
the majority of the employees had gone on strike under its
guidance." When a doubt does not exist, a force, a defense of
good-faith doubt is lacking in merit and is wholly superfluous
Indeed it is sheer fiction to indulge the defense of good-faith
doubt where doubt cannot exist46 as in this case Had the
Respondent Company been inclined to accommodate the
statutory purpose it either would have responded to the
38 Frank Tonkinson ( Frank Tonkinson remained away from work
several weeks after the strike commenced ) and Irving Hughson returned
in January 1966. Charles Shaw followed in the latter part of March or
early April Stempert , Ehre, and Hicks returned in the latter part of May
1966 Vandermark returned in June 1966 Hernsdorf returned for a day
and a half in January 1966.
39 There is competent and credible testimony supporting a finding
that all the Derses in passing to and from the Company 's establishment
had an opportunity to observe the picketing commencing on October
12, 1965 and the employees on the picket line.
40 The record is barren of any competent credible evidence that on
October 12th or 13th any of the 13 card signers were unlawfully
coerced into signing the union authorization cards or joined the picket
line because of unlawful coercion.
41 If a good -faith doubt as to the appropriateness of the unit were
claimed by the Respondent employer, such claim would not lie since a
good -faith but erroneous doubt as to the appropriateness of the unit is
not a defense to an otherwise meritorious charge of a refusal to bargain.
Southland Paint Company , Inc., 156 NLRB 22, Owego Street
Supermar ;ets, Inc 159 NLRB 1735.
42 Derse testified that Cohen produced " probably fifteen
authorization cards (two were blank ) at the October 12th demand.
Deese reported to the officers on October 14, 1965 that 10 or 11
employees were on strike The Respondent conceded that 11 employees
walked out of the plant on October 12th . Employee Munoz credibly
testified that while the i l pickets were on the picket line on October
12th , the picket line was observed by at least one Derse . Hissam
credibly testified that when the I 1 employees ceased work and left the
plant they all commenced peacefully picketing with signs reading "On
Strike . Textile Workers Union of America " and that while the 11 were
picketing all the Derses went "by "
43 All of the union authorization card signers appeared on the
picket line.
44 On December 2, 1965, Union Representative Jack Rubenstein
sent the following letter to the employer
Because of my inability to arrange a conference for the purpose of
receiving recognition and entering into collective bargaining with
your company which represents the majority of your employees,
proof of which has been presented to you, I have found it necessary,
at this time, to bring charges against your company for refusal to
recognize the union 's majority position in the plant.
Likewise I called the legal firm whose address you gave us, namely
Friedlander , Gains & Ruttenberg , 221 W 57 Street, and spoke to
Mr. Ruttenberg I was unable to get any positive commitment from
him regarding our union 's recognition or as to any positive statement
as to your company's willingness to sit down and meet with the
union
The company's failure to act in accordance with the provisions of
the law which requires the company to recognize the union
representing the majority of the company's employees leaves the
union with no other recourse but to proceed with the charges as
filed.
45 Section 9(c)(1)(B) of the Act provides for the filing of a petition
"by an employer , alleging that one or more individuals or labor
organizations have presented to him a claim to be recognized as the
representative defined in subsection (a) of this section,.. "
46 A showing of doubt requires more than an employer's mere
assertion of it and more than the proof of the employer 's subjective
state of mind Doubt must be proved by objective considerations Cf
Laystrom Manufacturing Co , 151 NLRB 1482, 1484 Objective facts in
the instant case do not furnish a reasonable basis for any doubt
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's request by putting to rest its purpose for ignoring the
Union's demand47 or it would have availed itself of Section
9(c)(1)(B) of the Act. Having done neither, the Respondent
Company depicted an absence of good faith and a disposition
to avoid the Act's directives Rather the employer strove to
test its employees' economic ability to foist union recognition
upon it even though it well knew that its employees had
designated the Union as their statutory bargaining represen-
tative. Thus its chosen course of conduct was a cause of
industrial conflict and ran counter to the purposes of the Act
to eliminate the causes of industrial strife
The Respondent Company argues that its chosen course of
conduct was not unlawful. The employer claims that it "has
the statutory right to reject union authorization cards as proof
of majority status and has the right to withhold recognition
until the Union shall have been certified pursuant to an
election conducted by the National Labor Relations Board X48
But "[t]here is no absolute right vested in an employer to
demand an election " N.L.R.B v Tnmfit of California, 211
F.2d 206, 209 (C.A. 9), accord N.L.R.B v Nelson Mfg. Co.,
326 F 2d 397, 399 (C A 6) 49 "The Act is clear in
intent . . that election and certification proceedings are not
the only method of determining majority representation "
L B Hartz Stores, 71 NLRB 148, 871, IOB v. Los Angeles
Brewing Co., 183 F.2d 398, 405 (C A. 9).
Moreover, the argument of the Respondent Company
overlooks the salient and distinguishing fact that in the instant
case not only was the majority status proved by valid union
authorization cards but the majority status was positively
proved by the strike and peaceful picketing by a majority of
the employees in an appropriate unit. Such a showing of
majority support constituted a designation of the Union as the
bargaining representative of the Respondent Company's em-
ployees within the meaning of Section 9(a) of the Act and was
as legally binding upon the Respondent as if the Board had
certified the results of an election conducted in conformity
with Section 9(c) of the Act.
The Supreme Court has said in United Mine Workers of
America v Arkansas Oak Flooring Co , 351 US 62, 71
" . Section 9(a), which deals expressly with employee repre-
sentation, says nothing as to how the employees' representa-
tive shall be chosen. See Lebanon Steel Foundry v NL.R.B.,
76 U S App D.C. 100, 103, 130 F 2d 404, 407."50 The
statute "leaves open the manner of choosing" the bargaining
representative Id., 74.
When a choice of bargaining agent has been made which
satisfies the requirements of Section 9(a) of the Act an
employer may not test the economic strength of his employees
by provoking or prolonging a recognition strike. There is no
doubt that the Respondent employer could have lawfully
recognized and bargained with the Union. "That being so,
there is no reason why the employees, and their union under
their authorization, may not under Section 13, strike, and,
47 " there must be some manifestation of doubt to the union."
Skyline Homes, Inc v N L R.B , 323 F 2d 642, 648 (C.A 5).
48 In N L R.B v Dahlstrom Metallic Door Co., supra, 757, the Court
said, "The contention that bargaining was not mandatory until the
Board had accredited Local No. 307 as bargimng agent is frivolous."
49 In United Butchers Abattoir, Inc, 123 NLRB 947, 957, the
'Board said , "The right of an employer to insist upon a Board -directed
election is not absolute " Stated another way the Board recently said in
Metropolitan Life Insurance Company, 156 NLRB 1408
A representative proceeding is not a prerequisite to the validity
of a bargaining order
50 The following language appears on 407
under Section 7, peacefully picket the premises of their
employer to induce it thus to recognize their chosen represen-
tative " United Mine Workers of America v Arkansas Oak
Flooring Co., supra, 75. The strike and peaceful picketing on
October 12, 1965, were lawful5 i and the employees' choice of
the Union by signed designations and the participation in
strike and picket line activities satisfied the requirements of
Section 9(a) Hence it must be conceded that the Union
represented a majority of the Respondent Company's employ-
ees in an appropriate unit
"Under [Sections 7 and 9(a)] and by virtue of the
conceded designations of the Union, the employer is obligated
to recognize the designated union " United Mine Workers of
America v Arkansas Oak Flooring Co., supra, 75. Where, as
here, the employer entertains no reasonable doubt either with
respect to the appropriateness of the proposed unit or the
Union's representative status, and seeks a Board-directed
election without a valid ground therefor, he has failed to fulfill
the bargaining requirements under the Act Snow and Sons,
134 NLRB 709, 710
The Trial Examiner finds that by its refusal to recognize
and bargain collectively with the Union on October 12, 1965,
and thereafter the Respondent Company violated Section
8(a)(1) and (5) of the Act and that the strike which resulted
therefrom was caused and prolonged by said unfair labor
practices and the strike was an unfair labor practice strike
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent Company set forth in
section III, above, occurring in connection with its operations
set forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
V THE REMEDY
The Board has said
The Board has a particular duty under Section 10(c) to
tailor its remedies to the unfair labor practices which have
occurred and thereby effectuate the policies of the Act
Thus, "depend [ing] upon the circumstances of each case,"
the Board must "take measures designed to recreate the
conditions and relationships that would have been had there
been no unfair labor practice " [H W Elson Bottling Co.,
155 NLRB 714, 715.1
"To recreate the conditions and relationships that would
have been had there been no unfair labor practice" in the
instant case would mean literally that the status quo must be
restored as of a date immediately preceding the time when the
The Wagner Act requires no specific form of authority to bargain
collectively . Authority may be given by action as well as
words Not form , but intent , is the essential thing The intent
required is merely that the union or other organization or person act
as employees ' representative in collective bargaining This intent has
been found from participating in a strike vote taken by the union, a
strike called by the union , and acceptance of strike benefits It is
only necessary that it be manifested in some manner capable of
proof, whether by behavior or language
Si Where a meritorious 8(a)(5) charge is filed an 8 (b)(7)(C) charge
will not lie See International Hod Carriers Building and Common
Laborers Union ofAmenea, 135 NLRB 1153, 1166, fn 24
ARTHUR F. DERSE, SR. 223
Respondent Company first determined to deny recogntion to
the Union. At that time all strikers were gainfully employed
They were performing their usual job assignments On that
date had the Respondent Company assumed its obligation to
bargain, it is reasonable to assume that the strikers would have
remained at work and collective bargaining would have had a
chance to succeed. However, by reason of the Respondent
Company's unfair labor practices this chance for collective
bargaining to succeed will occur after the Company by its
unfair labor practices has reduced the Union's bargaining
strength and dissipated the effect of its strike. Thus the
re-creation of the identical conditions and relationships as they
existed had the unfair labor practices not been committed
appears to be impossible of achievement, but there is left the
probability of depriving the Respondent Company in part of
the advantages it has unlawfully gained, one of which has been
the reduction of the Union's bargaining power to almost
nothing. By its unfair labor practices the Respondent deprived
its employees of the means of dealing with their employer with
a measure of equality, discouraged collective bargaining, and
rendered impotent their utilization of collective action. In this
the Respondent flouted the purposes of the Act ". . the
avowed and interrelated purposes of the Act are to encourage
collective bargaining and to remedy the individual worker's
inequality of bargaining power ." N.L.R.B v Hearst
Publications, Inc., 322 U S 111, 126.
A bare order to bargain in this case will only serve to
acknowledge the formalities of the law while the Respondent
retains full possession of the fruits of its violations Cf
Montgomery Ward & Co v. N.L.R.B., 339 F 2d 889, 894 (C.A.
6). Moreover, it is the Respondent who should bear the brunt
of the disentanglement of the consequences of its unfair labor
practices, since it has caused the chain of events which resulted
in the deprivation of rights flowing to the Union and its
employees An appropriate remedy contemplates that the
employer shall not retain the fruits of his unfair labor
practices. Beacon Piece Dying & Finishing Co., Inc., 121
NLRB 953, 963. See also N.L.R.B. v Armco Drainage & Metal
Products, Inc., 220 F.2d 573 (C.A. 6), Piasecki Aircraft
Corporation v N.L.R.B., 280 F 2d 575, 591 (C A. 3), cert.
denied 364 U.S. 933 A remedy which will "effectuate the
policies" of the Act in this case calls for a restoration of the
Union's bargaining power lost by reason of the Respondent
Company's unfair labor practices.
Hence, in order that to some extent the bargaining power of
the Union destroyed by the Respondent Company's labor
practices may be restored, and, in order that the unfair labor
practice strikers who lost pay by reason of the Respondent
Company's unfair labor practices may be reimbursed, and, in
order to effectuate the policies of the Act, the Trial Examiner
recommends, in addition to a bargaining order and the posting
of notices, that the Respondent make whole each unfair labor
practice striker for loss of earnings52 he has suffered by paying
to him a sum of money equivalent to the amount he would
have normally earned during any periods commencing on
October 12, 1965 when his usual job assignments were
performed by another employee until such time as the
Respondent Company has complied with the Recommended
Order herein, less net earnings during said period, to be
computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Co., 90 NLRB 289, and shall
include interest at the rate of 6 percent per annum, to be
computed in the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
In that a purpose of the Remedy is "to remedy the
individual worker's inequality of baigarmng power" caused by
the Respondent Company's unfair labor practices, it is further
recommended that the Union be allowed to utilize the
recommended backpay award as an item for negotiation.
CONCLUSIONS OF LAW
1. The Textile Workers Union of America, AFL-CIO, is a
labor organization within the meaning of the Act
2. The Respondent Wilder Mfg Co., Inc., is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act
and it will effectuate the purposes of the Act for jurisdiction to
be exercised herein.
3. All production and maintenance employees of the Wilder
Mfg. Co , Inc., employed at its Port Jervis, New York, plant,
excluding all other employees, guards and supervisors as defined
in the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the
Act, as amended.
4. At all times since October 12, 1965, the above labor
organization has been, and now is, the exclusive representative of
all the employees in the above appropriate unit, for the purpose
of collective bargaining within the meaning of Section 9(a) of the
Act.
5 By refusing to recognize and bargain with the Union on
and after October 12, 1965, said Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act
6. The strike which commenced on October 12, 1965, was
caused and prolonged by said Respondent's unfair labor
practices and hence was an unfair labor practice strike.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law
and upon the entire record in this case, it is recommended that
the Respondent, Wilder Mfg. Co , Inc., its officers, agents,
successors, and assigns, shall.
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with the
Textile Workers Union of America, AFL-CIO, in the
following appropriate unit:
All production and maintenance employees of the Wilder
Mfg. Co., Inc., employed at its Port Jervis, New York, plant,
excluding all other employees, guards and supervisors as
defined in the Act.
52 The Act does not specifically limit the Board's power to order
backpay to any specific violation of the Act . Section 10 (c) of the Act
provides:
If upon the preponderance of the testimony taken the Board shall be
of the opinion that any person named in the complaint has engaged
in or is engaging in any such unfair labor practices , then the
Board ... shall issue . . on such person an order requiring such
person . . to take such affirmative action including reinstatement of
employees with or without backpay, as will effectuate the policies of
the Act
As unfair labor practice strikers , the strikers in the instant case are
entitled to reinstatement.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act
(a) Upon request, bargain with the Union as the exclusive
representative of the employees in the appropriate unit and, if
an understanding is reached, reduce it to writing and sign it.
(b) Make whole each unfair labor practice striker for any
loss of pay he may have suffered by reason of the said
Respondent's unfair labor practices in accordance with the
recommendations set forth in "The Remedy" herein.
(c) Preserve and, upon request, make available to the Board
and its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records relevant or necessary
to the determination of backpay due and related rights
provided under the terms of this Recommended Order
(d) Post at its Port Jervis, New York establishment, copies
of the notice attached hereto and marked "Appendix."53
Copies of said notice, to be furnished by the Regional Director
for Region 2, shall, after being duly signed by Respondent's
representative, be posted by it immediately upon receipt
thereof and maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by said Respondent to insure that said notices-
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Recommended Order,
what steps said Respondent has taken to comply
herewith.5 4
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act other than
those found in this Decision
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of
the National Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as amended, we
hereby notify our employees that
WE WILL NOT refuse to bargain collectively with the
Textile Workers Union of America, AFL-CIO, as the
exclusive representative of the employees in the bargaining
unit described below
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act
WE WILL, upon request, bargain with the above-named
Union, as the exclusive representative of all employees in the
bargaining unit described below with respect to wages,
hours, and other terms and conditions of employment and,
if an understanding is reached, embody such understanding
in a signed agreement
The bargaining unit is-
All production and maintenance employees of the
Wilder Mfg Co., Inc. employed at its Port Jervis, New
York plant, excluding all other employees, guards and
supervisors as defined in the Act
WE WILL make whole each unfair labor practice striker
for any loss of pay he may have suffered by reason of our
unfair labor practices.
WILDER MFG CO, INC
(Employer)
Dated By
53 In the event that this Recommended Order be adopted by the
Board, the words "A DECISION AND ORDER" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the notice.
In the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals, the words "a decree of the United
States Court of Appeals enforcing an order" shall be substituted for the
words "a Decision and Order."
54 In the event that this Recommended Order be adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director , in writing , within IO days from the date of this Order, what
steps the Respondent has taken to comply herewith "
(Representative) (Title)
This Notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material
If employees have any question concerning this Notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, Fifth Floor Squibb
Building, 745 Fifth Avenue, New York, New York 10022,
Telephone 751-5500.