Bonafide Mills, Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1942

38 N.L.R.B. 661 (N.L.R.B. 1942)

In the Matter of BONAFIDE MILLS , INC. and INTERNATIONAL BROTHER-
HOOD OF PULP , SULPHITE AND PAPER MILL WORKERS (A. F. L.)
Case No. C-1975.Decided January 29, 1942
Jurisdiction : linoleum manufacturing industry.
Unfair Labor Practices
Interference , Restraint , and Coercion ; charges of , dismissed.
Collective Bargaining : charges of refusal to bargain collectively , dismissed.
An employer has not refused to bargain collectively , where it reasonably
and in good faith contended throughout its negotiations with the union,
that both of its plants constituted a single appropriate unit, and in good
faith refused to bargain collectively with the union as exclusive represent-
ative of the employees at one of its plants only because of the appropriate
unit issue and pending authoritative "determination" of "that vital point".
Practice and Procedure : complaint dismissed.
Mr. Albert J. Hoban and Mr. Anthony E. Molina , for the Board.
Mr. Herbert A. Lien and Mr. I. Arnold Himber, of New York City,
for the respondent.
Mary M. Persinger , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, affiliated with the American Fed-
eration of Labor, herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for
the First Region (Boston, Massachusetts), issued its complaint, dated
July 21, 1941, against Bonafide Mills, Inc., Lisbon, Maine, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint, accompanied by notice of hearing
thereon, were duly served upon the respondent and the Union.
38 N. L . R. B, No. 133.
661
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleged
in substance (1) that the respondent, at its Lisbon, Maine, plant on
August 8, 1940, and at all times thereafter, refused to bargain collec-
tively with the Union, although the Union at all such times was the
exclusive representative of the respondent's employees in a -unit ap-
propriate for the purposes of collective bargaining; (2), that during
the month of June 1940, and at various times thereafter, the respond-
ent by its officers, agents, and supervisory employees, and more par-
ticularly by Samuel Spector, president, King, production manager,
and Rowe, superintendent, made 'statements to its 'employees deroga-
tory to the Union, and granted concessions directly, to its employees
instead of through the Union; and (5) that by the foregoing acts,
the respondent interfered with, restrained,, and coerced its employees
in- the exercise of the rights guaranteed in Section 7 of the Act. On
August 1, 1941, the respondent filed its answer to the complaint, deny-
ing that it had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held on August 4, 5, 6, and 7,
1941, at Lisbon Falls, Maine, before W. P. Webb, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard-, to examine and cross-examine
witnesses, and to introduce evidence bearing upon' the issues was
afforded all parties. '
.
'
At the close of the Board's case and again at the conclusion of the
hearing, counsel for the respondent moved to dismiss the entire coin-
plaint for lack of proof and also'to dismiss the complaint insofar as
it alleged violation of Section 8 (5) of the Act, for the same reason.
Ruling on these motions was reserved by the Trial Examiner, and
they were denied in his Intermediate Report. At the conclusion of the
hearing counsel for the Board moved to amend the pleadings to con-
form to the proof. There' was no objection, and the motion was
granted. During the course of the hearing the Trial Examiner made
various rulings on other motions and'on objections to the admission of
evidence. The Board has reviewed 'the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. With the ex-
ceptions noted below, the rulings are hereby affirmed.
On September 9, 1941, a brief was submitted by counsel for the
respondent. Thereafter, the Trial Examiner issued his Intermediate
Report, dated September 30, 1941, copies of which were duly'served
upon the respondent and the Union. The Trial Examiner found that
the'respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1) and (5)
and Section 2 (6) and (7) of the Act, and recommended that the re-
spondent cease and desist therefrom, and take certain affirmative ac-
tion. He also found that the respondent had not interfered with,
BONAFIDE MILLS, INC. ,663
restrained, or coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act by dealing directly with its. employees
instead of through the Union ; by making statements derogatory to
the Union; or by granting' concessions directly to its employees
instead of through the Union.
On November 10, 1941, the respondent filed exceptions to the Inter-
mediate Report, and a brief in support of such exceptions. Pursuant
to notice, a hearing for the purpose of oral argument was held on No-
vember 13, 1941, before the Board, at Washington, P. C. The re-
spondent was represented by counsel and participated in the hearing.
The Board has considered the exceptions and briefs filed by. the re-
spondent, and finds that the exceptions, insofar as they are consistent
with the findings of fact, conclusions of law, and order set forth below,
have merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Maine corporation with its principal executive
offices located in New York City, is engaged in the manufacture, sale,
and distribution of linoleum. It owns and operates two plants, one
located at Winthrop, Maine, herein called Winthrop, and the other at
Lisbon, Maine, herein called Lisbon. The respondent maintains stor-
age warehouses in Brooklyn, New York; Pittsburgh, Pennsylvania;
Detroit, Michigan ; Chicago, Illinois ; and at other points. The prin-
cipal raw materials used at the plants are burlap, linseed oil, resin,
soy-bean oil, cork, wood flour, color, and fillers, 95 percent of which is
shipped to the plants from foreign countries and States other than
Maine. The value of such materials purchased annually is in excess of
$5,00,000. The value of the finished products manufactured at the re-
spondent's two plants annually is in excess of $1,000,000, of which ap-
proximately 95 percent is sold and delivered to points outside the State
of Maine. The respondent admits that it is engaged in commerce,
within the meaning of the Act.
Ii. THE ' ORGANIZATION INVOLVED
International Brotherhood of Pulp, Sulphite and Paper, Mill
Workers, Local No. 418, affiliated with the American Federation of
Labor, is a labor organization admitting to membership employees of
the respondent's Libson plant.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleged, in substance, that the respondent on August
8, 1940, and at all times thereafter, refused to bargain collectively
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union as the duly authorized representative of the employees
in the Lisbon plant.
United Rubber Workers of America, District No. 2, affiliated with
the Congress of Industrial Organizations, herein called the C. I. 0.,
began to organize the Lisbon employees in April or May 1940. On
May 22, the C. I. O. informed the respondent by letter that a majority
of the respondent's employees had designated the C. I. O. as their rep-
resentative for purposes of collective bargaining and requested a con-
ference. Pursuant to this request, Samuel Spector, president of the
respondent, met with a representative of the C. I. 0.1 At the confer-
ence, the respondent took the position that both its plants constituted
a single appropriate unit, that the C. I. O. would therefore have to rep-
resent a majority of the production employees in this unit in order to
become the exclusive collective bargaining representative of the re-
spondent's employees, but that the respondent had no objection to
bargaining with the C. I. O. for its members only. So far as appears
from the record, no further effort was made by the C. I. O. to organize
the respondent's employees or to bargain with the respondent.
The Union began its organizational efforts at Lisbon in the latter
part of May. On June 12 and again on July 30, 1940, Morris, a repre-
sentative of the Union, informed Spector by letter that a majority of
the employees in the Lisbon plant had signed applications for mem-
bership in the Union and requested the right to bargain for these
employees. Spector advised Morris that he would be pleased to dis-
cuss with him at any time matters pertaining to the welfare of his
employees.
On August 8, it meeting was held in the Lisbon plant between
representatives of the Union and the respondent. The union repre-
sentatives stated that the Union represented a majority of the em-
ployees in the Lisbon plant and offered to show the respondent a list
of its members. Spector declined, to look at the list and stated that
he would take their word for it. Spector further said that he would
never sign a "union-shop" agreement with any union; 2 that he would
talk with any union representative who came into the plant, or to
any employee individually; that he would deal with the union com-
mittee as the representative of the union members and that he would
deal individually with those employees who did not belong to the
Union; that the policy of the respondent would continue as it had been
in the past "and if the employees didn't like that way of doing they
could look for work elsewhere." Spector further said,
1 Although the exact date of this conference does not appear in the record, it is clear that
it took place shortly before the respondent first met with the Union.
' The record indicates that one of the demands of the Union at this meeting was for a
"union-shop" agreement . By "union-shop" the parties had reference to some kind of
closed shop.
BONAFIDE MILLS, INC. 665
Now Morris, let us get this straight, off the record, you know you
were up to see Mr. Rowe at his home and one of the reasons you
were up there is because you heard the C. I. O. was in here. I
don't mind telling you I spoke to the C. I. 0., and I can only
tell you what I said to them, that is this, that we have two plants
here in the State of Maine; that if you are coming here on the
basis of a sole bargaining agreement, you must have a majority
of all the employees of the production capacity [sic] of those
plants. If you are here on the basis of bargaining for some mem-
bers or employees of the Lisbon plant that is another story.
Further meetings were held at the Lisbon plant between the union
representatives and representatives of the respondent. At the meet-
ing of October 8 the Union presented a proposed contract which pro-
vided, among other things, for recognition of the Union as the sole
representative of the respondent's employees in the Lisbon plant,
a closed shop, and seniority rights. Spector again stated that the
policy of the respondent was that it would bargain with any individ-
ual or with any representative of any group of individuals, and would
give sole collective bargaining rights only to the individual or union
which represented a majority at both plants. At the meeting of
October 22, Spector presented a proposed contract which stated that :
The Company recognizes the signatory union as the bargaining
agency for the employees of Bonafide Mills, Inc. that are mem-
bers of its union.
The Union refused to accept this proposal and insisted that the re-
spondent recognize the Union as the sole bargaining representative of
all the employees in the Lisbon plant. Spector again refused this
request.
At a conference on November 14 the principal issues discussed were
recognition of the Union and seniority. With respect to that meeting,
Spector testified without contradiction that :
We were willing and ready to sign at any time a contract for the
members they represented, but not to give them a contract for sole
bargaining agency.
At that meeting Spector stated that he would consult the respondent's
attorney and would submit a written proposal to the union repre-
sentatives later. On November 16 this proposal, which differed very
little from the previous proposal submitted by the respondent, was
delivered to the Union. Section 2 stated :
The Company recognizes the signatory union as a collective bar-
gaining agency for the employees of Bonafide Mills, Inc. at its
plant at Lisbon, Maine only. [Italics supplied.]
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This proposal was discussed at a union meeting and rejected because
it did not recognize the Union as the sole agency for collective bar-
gaining. At a further conference between the parties on December
9, Spector stated that he had consulted the respondent's attorney
and that the respondent would recognize the Union as the "sole"
bargaining agency for its members only. Spector also reiterated the
respondent's contention that both plants constituted one appropriate
unit for purposes of collective bargaining; and the Union again
contended that employees in the Lisbon plant constituted a separate
unit.
At the last meeting between the respondent and the Union, which
occurred on December 13, Morris stated that he would have to submit
the appropriate unit issue to "the Labor Board." Spector replied :
"Well, Morris, maybe that is the thing to do, because sooner or later
we will have to get a determination on that vital point."
On December 23, Abraham Spector, secretary and treasurer of the
respondent, informed Morris by letter that the respondent was pre-
pared to enter into an agreement with the Union for its members
only and that the respondent was still of the opinion that the appro-
priate unit consisted of the employees of both plants. The respondent
and the Union did not engage in further negotiations.
The Lisbon and Winthrop plants are some 20 miles apart. The
Union investigated the possibility of securing members at Winthrop
but did not start a membership drive there. Both plants manufac-
ture linoleum, but their output differs in quality. Although each
plant has a supervisory force, both are subject to unified management
and labor relations control. The respondent purchases raw materials
for, and customarily sells finished products from, both plants, in
combined lots. Winthrop builds machinery, mixes paints, develops
processes and casts blocks and designs, for Lisbon; while Lisbon pre-
pares electrical lay-outs for Winthrop. About 30 employees of 125
at Winthrop, devote approximately 20 percent of their time to mak-
ing a burlap base used at Lisbon. Another 25 or 30 men at the Win-
throp plant spend between 40 and 60 percent of their time in loading
and unloading trucks going to, or coming from, the Lisbon plant.
Employees are interchanged between the 2 plants to some extent,
and the respondent awards wage increases and bonuses to the em-
ployees of both, simultaneously. Although each plant has a separate
office force, the respondent maintains at Winthrop a single set of
social security, unemployment insurance, and workmen's compensa-
tion records, for the employees of both plants.
While the matter is not free from doubt, we are of the opinion,
and find, upon the entire record, that the respondent reasonably and
in good faith contended, throughout its negotiations with the Union
and at the hearing, that both plants constituted a single appropri-
BONAFIDE MILLS, INC. 667
ate unit; that the respondent reasonably and in good faith refused
to bargain collectively with the Union as the exclusive representative
of the Lisbon employees, only because of the appropriate unit issue
and pending authoritative "determination" of "that vital point"; and
that therefore the respondent has not unlawfully refused to bargain
collectively. In view of the foregoing, it is unnecessary to make any
determination in this proceeding as to the appropriate bargaining
unit or as to representation by the Union of a majority within such
unit.
The complaint also alleged that the respondent had, by various
statements and acts, interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act. The Trial Examiner, however, found in favor of the respondent,
with respect to this part of the complaint, and the Union has not
taken exception to such finding. We have considered the record and
agree with the Trial Examiner.
Since the respondent has not engaged in the alleged unfair labor
practices, we shall dismiss the complaint.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. The operations of the respondent, Bonafide Mills, Inc., consti-
tute a continuous flow of trade, traffic, and commerce among the sev-
eral States of the United States, within the meaning of Section 2 (6)
of the Act.
2. Local No. 418, International Brotherhood of Pulp, Sulphite and
Paper Mill Workers, affiliated with the American Federation of
Labor, is a labor organization within the meaning of Section 2 (5)
of the Act.
3. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (1) and (5) of the Act.
ORDER
Upon the basis of the foregoing findings of fact , conclusions of law,
and the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint against the respondent, Bona-
fide Mills, Inc., Lisbon , Maine , be, and it hereby is, dismissed.