Dadourian Export Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1942

46 N.L.R.B. 498 (N.L.R.B. 1942)

In the Matter of DADOURIAN EXPORT CORPORATION and NEW YORK
JOINT BOARD OF THE AMALGAMATED CLOTHING WORKERS OF AMERICA,
C. I. O.
Case No. C-0269-Decided December 31, 1942
-Jurisdiction : garment reconditioning and distributing industry.
Unfair Labor Practices - -
Collective Bargaining: majority established by designation petition ; designa-
tions not affected by alleged misrepresentation ; informal request for return
of authorization paper found an effective revocation-refusal to bargain
collectively by : failure to grant unequivocal recognition ; refusal to agree to
union's proposals and failure to advance counterproposals ; thereafter, refusal
to meet and negotiate purportedly because of,doubt as to union's majority,
concerning which it failed to inform union.
-- emedial Orders : cease and desist,unfair labor practices ; upon request to bar-
gain collectively; expansion of operations subsequent to refusal to bargain
resulting in loss of union's majority, found not to affect order requiring
employer to bargain. f
Unit Appropriate for Collective Bargaining : production workers, exclusive of
office, clerical, and supervisory employees.
Mr. John J. Cuneo, for the Board.
Mr. M. J. Lovell, of New York, City, for the respondent.-
Mr. Max J. Merbaum, of New York City, for the Union.
Mr. Ben Law, of counsel to the Board.
DECISION
AND
ORDER
i
STATEMENT OF THE CASE
Upon an amended charge duly filed by New York Joint Board of
the Amalgamated Clothing Workers of America, C. I. 0., 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 May 21, 1942, against
Dadourian Export Corporation, New York City, 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), (3), and (5), and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
46 N. L. R. B., No. 63.
498
DADOURIAN EXPORT CORPORATION- 499
Act. Copies of the complaint, accompanied by notice of hearing,
were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint, as
amended at the commencement of the, hearing, alleged in substance:,
(1) that all production workers engaged in processing, including
pressing, repairing, cleaning, shipping, and packing, employed by
the respondent at its New York City plant, exclusive of office, clerical,
and supervisory employees, constitute a unit appropriate ,for the
purposes of collective, bargaining; (2) that on or about August 25,
1941, a majority of the employees of the respondent in such unit
designated the Union as their representative for the purposes of
collective bargaining; (3) that on or about September 6, 1941, and
at all times thereafter, the respondent, although duly requested,
refused to bargain collectively with the Union as the exclusive repre-
sentative of all its employees in the appropriate unit, except that on
or about September 17, 1941, and until on or about November 7, 1941,
'the respondent agreed to recognize the Union as the exclusive repre-
sentative of all its employees in such unit.
On May 30, 1942, the respondent filed its answer in -which it
admitted the appropriateness of the unit and its failure to bargain,
alleging as an affirmative defense that its recognition of the Union
was based upon misrepresentation by the Union that it was authorized
by a majority of the respondent's employees to act as their bargaining
representative.
Pursuant to,notice, a hearing was held on June 25 and 26, 1942, at
New York City, before William E. Spencer, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent,
and the Union were represented by counsel and 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 Trial Examiner
granted, without objection, the Board's motion to amend the complaint
by striking therefrom all allegations of unfair labor practices except
the refusal to bargain and related clauses. Upon the granting of this
motion, the respondent withdrew its motion for a bill of particulars
which it had filed with the Regional Director prior to the hearing, but
upon which no action had been taken. At the close of. the Board's case,
the Trial Examiner denied a motion by the respondent to dismiss the
complaint for lack of proof. The respondent renewed this motion at
the close of the hearing and the Trial Examiner reserved ruling thereon
until issuance of his Intermediate Report, in which he denied the
motion. At the close of the entire case,, the Trial Examiner granted a
motion by the Board to conform, the pleadings to the proof as well as
a motion by the respondent to conform its answer to the proof insofar
as the pleadings related to insubstantial matters, such as dates, places,
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and names. In his Intermediate Report the Trial, Examiner granted
a motion by the respondent, made 'at the close-of the hearing, to amend
its answer to allege that the respondent recognized and bargained with
the Union from on' or about September 17, until about November, 7,
1941, and-denied a,motion made by the Board at the close of the hearing
to strike all the testimony, of certain of the respondent's, witnesses.
The Trial Examiner thereafter filed,his Intermediate Report, dated
July 21, 1942, copies of which were duly, served upon the -parties, in
which he found that the respondent had engaged 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. He recommended that the
respondent-cease and desist from its unfair labor, practices and, upon
request, bargain collectively with the Union as the exclusive representa-
tive of its employees in an appropriate unit. On September 3, 1942, the
respondent filed its, exceptions, to the Intermediate Report and a sup-
porting brief. The Board has considered the exceptions and brief
and, insofar as the exceptions are inconsistent with the findings, con-
clusions, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Dadourian Export Corporation, is a New York
corporation having its principal office and plant at 25 Elizabeth Street,
New -York City, where it 'is engaged in purchasing, reconditioning,
selling, distributing, and exporting second-hand wearing apparel,
leather goods, and related products' During the 6-month period pre-
ceding the hearing, a representative period in the respondent's business,
materials purchased by and shipped to the respondent at its New York
City plant from points outside the State of New York, amounted to
approximately $100,000 in value and constituted about 50 percent, of
the total volume of the respondent's purchases for its New York City
plant during the same period. Finished products sold by the respond-
ent and shipped and exported from its New York'City plant to places
outside the. State of New York and to and through countries other
than the United States, during the same period, amounted to approxi-
mately $200,000 in value and constituted over 50 percent of the total
volume of the respondent's sales during the said period. The respond-
ent admits that it is engaged in commerce within' the meaning of the
Act. I
II. THE ORGANIZATION INVOLVED
New York Joint Board of the Amalgamated Clothing Workers of
,America is a labor, organization affiliated with the Congress of Indus-
•'DADOURIAN EXPORT CORPORATION- 501
trial Organizations , admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
The' complaint alleged, the respondent in its answer admitted, and
at the hearing the parties stipulated that all production workers
engaged in processing , including- pressing, repairing , cleaning, ship-
ping, and packing , employed by the respondent at its•New York City
plant, exclusive of office; clerical ,- and supervisory employees , constitute
an appropriate unit.
At the hearing the respondent contended, however, for the first
time, that the unit, as described above, when properly construed,
includes employees of the American Jobbing Company, a wholly owned
subsidiary of the respondent . The Union disavows any interest in
employees of the American Jobbing Company and urges that they be
excluded from the unit . The evidence shows that the American Job-
bing Company is a, corporation operated primarily as a sales agency
for the respondent . It occupies a portion of the respondent 's premises,
for which it pays rent to the respondent , and there is some overlapping
of the functions of employees of the two corporations . Each , however,
is a corporate entity; maintains its own pay roll and account books;
and makes its own income and social security tax returns:
It is clear the that Union's claim of representation has been at all
times limited to the employees of the respondent . Beginning with a
conference at the Board's Regional Office on September 17, 1941, several
conferences were held between representatives of the respondent and
the Union on the matter of recognition by the respondent of the Union
as bargaining representative of its employees . It is admitted by the
respondent that during none of these conferences were employees of
the American Jobbing Company mentioned . The respondent
addressed two letters to the Union following the conference of Septem-
ber 17 , each of which purported to recognize the Union ; both of these
letters were written on Dadourian Export Corporation stationery and
signed by its president , D. Dadourian ; in neither of these letters was
the American Jobbing Company or its employees ,mentioned.
While under other and different circumstances the unit contended
for by the respondent might be deemed appropriate , there-is no com-
pelling reason why , in the present case, the Union should be bound by
the strictures of a unit which would include employees of a corporation
in which it has never asserted , and does not now assert , an interest, and
who have indicated no desire for representation by it. Nor is there any
reason why the employees of the respondent should have their bargain-
502 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
ing rights determined by the respondent's untimely assertion that the
appropriate unit should include employees of a second distinct, though
subsidiary, corporation. We find, as did the Trial Examiner, that the
employees of the American Jobbing Company are excluded from the
appropriate unit.
The only other question raised as to the unit is whether or, not
Barkev Harontunian, Hetoun -Sahagian, Harvey Kavonian, and
Hanparsoon Kabakian should be excluded as supervisory employees.
The respondent's head bookkeeper described all four as supervisors.
Artin Aslanian, the respondent's vice president and general manager,
testified that this description by the head bookkeeper was erroneous.
The evidence shows, however, that Harontunian is an assistant to
Leon Hekimian, the head foreman, and, in the latter's absence, is
regularly consulted by the employees for advice and directions con-
cerning their work. Questioned as to why the employees, in Heki-
mian's, absence, report to Harontunian, Aslanian testified, "He pre-
pares their work, takes their work back and grades them, so they
naturally go to him." As to Sahagian, Aslanian testified that he
was the "main packer" and, when asked to explain what he meant by
that term, stated, "Well, just like Mr. McDonald is the main book-
keeper and all the rest are under his direction, he [Sahagian] is
the main packer, packs the goods, and somebody else hands it to
him. or brings it to him to pack." Aslanian admitted that one em-
ployee was directly and regularly under Sahagian's direction. We
find, on the basis 'of the foregoing, that Barkev Harontunian and
Hetoun Sahagian are supervisory employees and are, therefore, ex,
eluded from the unit. There is no showing, however, that Harvey
Kavonian and Hanparsoon Kabakian exercise supervisory functions
or authority. In view of that fact, and the fact that the head book-
keeper admitted having no direct knowledge as to their functions and
authority, we credit Aslanian's testimony that Harvey Kavonian and-
Hanparsoon Kabakian are not supervisors. We find that they are
included within the unit.
We find that all production workers engaged in processing, in-
cluding pressing, repairing, cleaning, shipping, and packing, em-
ployed by the respondent at its New York City plant, exclusive of
office, clerical, and supervisory employees, constituted at all times
material-herein,, and now constitute a unit appropriate for the pur-
poses of collective bargaining with respect to rates, of pay, wages,
hours of employment, 'and other conditions of eiiiployment, and that
the 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.
DADOURIAN EXPORT CORPORATION 503.,
2. Representation by the Union of a majority in the appropriate unit.
The respondent's pay-roll record for the week ending August 21,
1941, lists 54 employees, of whom 46 are within the unit which we
have found to be appropriate. The Board introduced in evidence a
designation paper reading as follows :
Nye, the undersigned, members of Local #25 of the New York
Joint Board of the Amalgamated Clothing Workers of America,,
tailors, operators, pressers, finishers, shipping clerks and packers,
working for the firm of DADOURIAN EXPORT CORPORA
TION, 25 Elizabeth Street, New York City, do hereby designate
the New York Joint Board of the Amalgamated Clothing Workers
of America as our sole collective bargaining, agent, to handle all
our claims, disputes and all other exigencies that may arise with
our employer.
To this designation paper were attached the signatures of 27 of the.
46 employees within the appropriate unit as of the week ending
August 21, 1941._ The testimony of Max Urwand, a representative of
the Union, establishes, and we find, that the 27 signatures were-
executed on August 19, 1941.
Although the respondent at the hearing conceded the apparent
authenticity of the signatures on the designation paper, it contends
that 6 of the 27 employees who signed never intended to have the
Union represent them for the purposes of collective bargaining and_
that the Union, therefore, never had majority representation. In
this. connection, the respondent called as witnesses the 6 employees
in question. One of them, Isidore Kaminsky, at first denied that he
had signed the designation paper and then testified that he could
not remember having signed. He" admitted signing a union card,
however, and gave no testimony whatever that he did not wish the
Union to represent him. Moreover, a comparison of his name ap-
pearing on the designation paper with his signature executed at the
hearing and introduced in evidence convinces us, and we find, that'
the former is his authentic sign-titure. The other 5 witnesses, Haig-
Boyian, Jack Blinder, Assunta Paxhia, Sam Solomon, and Hymen
Slon,._testified, in substance, that, although they did not wish to be-
represented by the Union, they signed the designation paper or a
union-card, or both, after Philip Capra, a fellow employee, told them
that they must join the Union or lose their jobs. Although Paxhia.
and Solomon alleged, in addition, that they could not read English
and that no one- read to them the contents of the designation paper-
before they signed, it is perfectly clear that they, as well as Boyiaan,,
Blinder, and Slon, understood that by signing it they were authoriz-
ing the Union to represent them in negotiations with the respondent..
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both Blinder and Paxhia testified that they. attended meetings of the
Union. The only testimony in the record which might cast some
doubt upon the validity of any of the signatures was that of Slon,
who alleges th' it Capra "grabbed me by the coat and took me down to'
the Union' office." Slon testified further, however, that Capra did
not hurt him in any way and. that he, Slon, never requested that
his signature be'removed from the designation paper. In the Dahl-
strom Metallic Door Company case, the court, in reviewing testimony
of this general character, stated :
These "threats" I were persuasive arguments addressed to the
employees" self-interest. We do not doubt their effectiveness,
but union organizers are quite free to explain the legitimate
consequences of joining or remaining aloof. Had the threats
been of physical violence, the case would be different, as the
Board itself conceded. But it would have been in no way'im-
proper for the Union to raise its dues or demand a' closed shop;'
consequently'it could not have been improper to "threaten" to
do so.' '
We find that the fact that a fellow employee told the 5 witnesses
that they would lose their jobs unless they designated the Union does'
not alter the effectiveness of their designations. Likewise, the testi-
mony of the witnesses 10 months after they had unequivocally desig-
nated the Union as' their representative for collective bargaining
that they did not wish the Union to represent them is insufficient
to rebut the presumption that their designations, continued for a
reasonable time after they were executed.2 One of the foregoing
witnesses, Haig Boyian, testified, However; that 2 or 3 days after he
had signed 'the designation paper he decided that he did not wish
to be represented by the Union and that he accordingly asked Capra
to "give me my paper back." We consider this an effective revoca-
tion of a valid designation and shall not count Boyian as one of those
authorizing the Union to represent him.
We find that, on August 19, 1941, and at all times thereafter, the
Union was the duly, designated, representative of 'a majority of the'
'employees of the respondent' in' the appropriate unit, and that by
virtue of Section 9 (a) of the Act,'the Union'was', on August 19,
1941, and at all times thereafter has been; the exclusive representative
of all employees. in such unit'for the purposes of collective bargaining.
'National Labor Relations , Board v. Dahlstrom, Metallic Door Company, 112 F. (2d) 756
(C. C. A 2), enf. Matter of Dahlstrom Metallic Door Company and United Electrical, Radio
4 Machine Workers of Ameracic , Local No. 307 , 11 N. L . R'B.'408.
'Cf. Matter of Botany Worsted Mills and .Textile, Workers Union of Ameraca,•C. 1 0., 41
AT L. R. B. 218.
DADOURIAN EXPORT CORPORATION 505
3. The refusal to bargain
Following the designation of the Union as the representative of
the respondent's employees, the Union, on September 2, 1941, notified
the respondent by letter of its majority representation and requested
a conference. On September 6, 1941, the Union filed with the Board
a petition for investigation and certification of representatives.3
On September 17, a conference on the Union's petition and claims
took place at the Board's Regional Office. Present were Artin ,
Aslanian, the respondent's vice president and general manager, and
M. J. Lovell, the respondent's counsel; Max Urwand, a representative
of the Union and Max J. Merbaum, the Union's counsel; and Wallace
Miller, a Field Examiner of the Board. At this conference, Miller
suggested an election to be conducted among the employees, or
voluntary recognition by the respondent of the Union, as alternate-
courses of action for dealing with 'the question of representation-
After conferring together, the respondent's representatives stated
that they, were satisfied that the Union had majority representation
and that the respondent did not desire an election and would grant
recognition to the Union. It is undisputed that the respondent raised
no question as to the appropriateness of the unit asserted by the
Union. -
Thereafter, the respondent, on September 17,-addressed a letter to,
the Union in whicli it stated :
This letter will acknowledge our willingness to bargain with
an appropriate unit of your organization on behalf of such of
our employees as may come properly within your jurisdiction.
For obvious reasons, this letter was deemed unsatisfactory by the
Union as a letter of recognition. A second letter was thereupon
addressed by,the respondent to the Union on September 27, contain-
ing the following recognition clause :
We hereby recognize your organization as the sole collective
bargaining agent for the production employees of this address.
On October 7 and 11, conference's' were held- in the Union's offices
between the respondent, represented by Aslanian and Lovell, and the
Union, represented by Urwand and Merbaum. There was some
general discussion of issues at these meetings. The Union stated
that it would demand a closed-shop contract. It also ' requested a.
wage increase, 'which was refused by the respondent on the ground
8 The letter of September 2 and the petition of September 6, 1941, were executed by the
Union through one of its local, subsidiary organizations , namely , New York Joint Board,
Bushelmen 's Section , Local 25, Amalgamated Clothing workers of America. On September
18, 1941, pursuant to a suggestion by the respondent , which indicated on September 17
that it would prefer to deal directly with the Union , the petition was amended to name only
the Union as the petitioning party. -
- .506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
that a wage increase had been granted during the prior month. . At
the October 11 meeting, proposals for a contract were discussed. No
agreement was reached, however, and the respondent's counsel, Lovell,
agreed to prepare a draft of a proposed contract. A week later
,Lovell wrote to Merbaum stating that, due to the urgency of other
-work, he had been unable to draft a proposed contract. He suggested
that, if the Union considered that the matter would not permit of
further delay, it should itself prepare the proposed contract: Mer-
baum complied with this suggestion within the ensuing 4 or 5 days
and thereafter telephoned Lovell several times to arrange a conference
for discussion of the Union's contract proposals. Lovell replied to
several of Merbaum's calls that, for various reasons, he could not
then confer.
The next meeting of the'parties took place on October 30 and was
occasioned by the termination of the employment on that day of
Philip Capra, an employee who had taken a leading part in organiza-
tional activities of the Union. ' The respondent refused to reinstate
Capra. Merbaum then suggested that the Capra matter be waived,
inasmuch as the Union was primarily interested in negotiating a con-
tract with the respondent. Aslanian replied that the respondent
-would not discuss a contract then because Dadour Dadourian, presi-
dent of the respondent, was out of town. He added that he would con-
fer with Dadourian upon his return, and would notify the union rep-
resentatives if a further meeting were considered necessary. Ur-
wand, a representative of the Union, had with him at the meeting a
-draft of the proposed contract prepared by. Merbaum. He testified
that lie would have presented it.had not Aslanian refused to proceed
with the discussion. It was Merbaum's uncontradicted testimony,, and
Nye find, as did the Trial Examiner, that, at the meeting of October
30; Lovell advised him privately that he, Lovell, had not been able to
induce the respondent to enter into an agreement with the Union.
Aslanian testified that prior to this meeting he told Lovell that he
thought the Union had "pulled a fast one" in obtaining recognition.
On November 6 the Union addressed a letter to the respondent
suggesting that, in view of the fact that the respondent had not
communicated with it,. since October 30, a conference be held on
,November 10 to "reach a definite agreement as to wages and other
conditions." The respondent made no reply to this letter, and on
November 17, 1941, the Union filed its charges herein.
On December 2, 1941, a meeting, attended by representatives of
'the parties, was held-at-the Board's-RegionahOfpice. At this meeting,
-for, the first time, the respondent challenged the Union's majority
representation and stated that it would no longer recognize or nego-
tiate with, the Union. _
DADOURIAN EXPORT CORPORATION 507
The sole affirmative defense asserted by the respondent in its
.answer to the Board's complaint was that its initial recognition of
the Union was based upon the latter's false Claim that it had majority
representation and that, as soon as the respondent discovered this
"deceit;'; it' "advised, the Union accordingly and thereafter did refuse
to bargain collectively with it." From the testimony of Aslanian
it is apparent that the so-called deceit related to September 17, 1941,
the date on which the respondent first agreed to recognize the Union.
Aslanian testified that late, in October 1941, prior to the meeting
with the Union on October 30; lie became convinced that the Union
had never had majority representation because "so many employees"
had asked hinl if it was true that they had to join a union to keep
their jobs and because President Dadour Dadourian and Foreman
Hekimian told him that employees had addressed similar inquiries
to them. Dadourian and Hekimian did not testify. Aslanian was
able to recall the names of only four employees who thus approached
him. None.of these four was called as a witness; nor does it appear
that any of them signed-the Union's designation paper or otherwise
became affiliated with the Union. Under these circumstances, we do
not consider credible Aslanian's testimony that during October 1941,
he became convinced that the Union never had majority representa-
tion. We have, moreover, considered all the evidence adduced upon
the question of representation and have found that on August 19,
1941, and at all times thereafter, the Union represented a majority
of the respondent's employees within the appropriate unit. We find
further, therefore, that there is no merit in the respondent's conten-
tion that the Union did not have a majority at the time it was
extended recognition.
Moreover, we are convinced from the respondent's entire course
of conduct, as was the Trial Examiner, that' the respondent at no
time entered into bargaining negotiations with the Union in good
faith. Its first purported letter of recognition to the Union on
September 17, 1941, was vabue and clearly inadequate. The second
,letter of recognition sent the Union on September 24, 1941, contained
a latent ambiguity in its description of the unit covered which, as
hereinafter set forth, the respondent subsequently utilized, after it
appeared that the Union's majority was slight, to claim a larger unit
than that petitioned for and contemplated by the Union. At the
conferences on October 7 and 11, 1941, the respondent refused all
proposals made by the Union and advanced no counterproposals of
its own. There is no showing that counsel for the respondent. ever
made any effort to draft the proposed written contract which on
October 11 he had agreed to prepare. Indeed,.it would appear that
his failure to do so was attributable to his inability to persuade the
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent to enter into an agreement if one were drafted. In fact,
counsel for the respondent so intimated to counsel for the Union at
the conference of October 30.
Assuming that the respondent did late in October begin to enter-
tain serious doubts as to the Union's•majority as of the date on which
recognition was granted, it was then under a duty, having granted
recognition, to inform the Union of-its doubts and to recheck with the
Union or some impartial party the Union's original proof of repre-
sentation. Instead, the respondent avoided bargaining on October
30 on the pretext that it could not discuss a contract in the absence
of Dadourian.. It idmittedly made no mention on October 30 of its
alleged belief that the Union . had never had a majority. This
conduct is in itself and standing alone clear indication of a predispo-
sition not to bargain. The respondent's subsequent refusal upon
request to meet. and confer with the Union, and its failure to inform
the Union as to its doubt's of the latter's majority until the meeting
of December 2 in the Board's Regional Office after charges had been
filed shows, not only a predisposition not to bargaini,but a positive
intent to avoid bargaining. We find, from its entire course of con-
duct, as did the Trial Examiner, that the respondent at no time
entered into collective bargaining with the Union in good faith.
On the basis of all the evidence, we find that on September 17,
1941, and at all times thereafter, the respondent refused to bargain
collectively with the Union as the exclusive representative of its
employees'in the appropriate unit, and that the respondent has there-
by interfered with, restrained, and coerced its employees in the
exercise of. the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find 'that' the activities of the respondent set forth in Section
III, above, , occurring in connection with the operations of the re-
spondent described 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
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies
of the Act.
We have found that. on September 17, 1941,, and at all times
thereafter, the respondent refused to bargain collectively with the
Union as the representative of a majority of its employees in an
DADOURIAN EXPORT CORPORATION, 509
appropriate unit. The respondent introduced evidence that by Oc-
tober 23, 1941, and thereafter, it expanded the number of its em-
ployees within the appropriate unit. It appears that, as a result of
such expansion, the Union may have lost its majority representation
sometime after the respondent granted it recognition. The respond-
ent at no time advanced the increase in number of its employees as
a reason for its refusal to bargain with the Union. It contends in its
brief, however, that•by reason of the increase the Union now represents
only a small minority, if any, of its employees and that the Board
should not, therefore, order it to bargain with the Union.
We do not agree with this contention. Here, the Union was denied
the fruits of collective bargaining through the unfair labor practices of
the respondent. If the Union did in fact lose its majority, through
failure to obtain the membership or designation of a proportionate
share of the new employees, it does not now lie with the respondent to
claim that such failure by the Union was caused by anything other than
the respondent's unfair labor practices. We have consistently held that
where there has been a refusal to bargain, the policies of the Act can
best be effectuated by an order to bargain, notwithstanding the fact that
the Union may have lost its majority representation 4 In-order to
effectuate the policies of the Act, we shall order the respondent to
bargain collectively, upon request, with the Union.
On 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. New York Joint Board of the Amalgamated Clothing Workers of
America, affiliated with the Congress of Industrial Organizations, is
a labor organization, within the meaning of Section 2 (5) of the Act.
2. All production workers engaged in processing, including pressing,
repairing, cleaning, shipping, and packing, employed by the respondent
at its New York City plant, exclusive of office, clerical, and supervisory
employees, constitute, and at all times material herein, constituted a
unit appropriate for-the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
3.-New York Joint Board of the Amalgamated Clothing Workers of
America, affiliated with the Congress of Industrial Organizations, was
on August 19, 1941, and at all times thereafter has been, the exclusive
4 Cf. International Association of Machinists , Tool and Die Makers Lodge No. 35, etc V.
National Labor Relations Board, aft. 110 F ( 2d) 29 , enf Matter of The Serrick Corporation
and International Union, United Automobile Worke rs of America, Local No. 1,59, 8 N. L
R B. 621; reh den 311 U S . 729; National Labor Relations Board v. P. Lorillard Co, 314
U S. 512 , rev and rem ' National Labor Relations Board V. P. Lorillard Co., 117 F. ( 2d) 920,
with directions to enf. Matter of P Lorillard Company, Middletown , Ohio, and Pioneer
Tobacco Workers ' Local Industrial Union No . 55, 16 N. L . R. B. 684.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of all employees in said-unit for the purposes of collec-
tive bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing on September 17, 1941, and at all times thereafter, to
bargain collectively with New York Joint Board of the Amalgamated
Clothing Workers of America, affiliated with, the Congress of Indus-'
trial Organizations, as the exclusive representative of its employees in
the appropriate unit, the respondent has engagedin 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.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of the
Act.
ORDER
Upon the basis of the. above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that Dadouriari
Export Corporation, New York City, its officers, agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with New York Joint Board
of Amalgamated Clothing Workers of America, affiliated with the
Congress of Industrial Organizations, as the exclusive representative
of all production workers engaged in processing, including pressing,
repairing, cleaning, shipping, and packing, employed by the respond-
ent at its New York City plant, exclusive of office, clerical, and super-
visory employees;
(b) Engaging in like or related acts or conduct interfering with,
restraining, or coercing its employees in the exercise of the rights to
self-organization, to form, join, or, assist labor organizations, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the New York Joint
Board of Amalgamated Clothing Workers of America, affiliated with
the Congress of Industrial Organizations, as-the exclusive representa-
tive of all production, workers engaged in processing, repairing, clean
ing, shipping, and packing, employed by the respondent at its New
DADOURIAN EXPORT CORPORATION 511,
York City plant, exclusive of office, clerical, and supervisory employees,
in respect to rates of pay, wages, hours of employment or other condi-
tions of employment-;
(b) Post immediately in conspicuous places throughout the 'New
York City plant, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices stating that (1) the
respondent will not engage in the conduct from which it is ordered to
cease and desist in paragraphs 1 (a) and. (b), hereof and (2) the
respondent will take the affirmative action set forth in paragraph 2 (a)
hereof;
(c), Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order what steps the
(espondent has taken to comply herewith.
MR. GERARD D. REILLY, dissenting :
The majority of the Board finds that the respondent violated
Section 8 (5) of the National Labor Relations Act by refusing to
bargain in good faith with the representative of its employees.
Since the obligation to bargain arises only when the representative
is acting for the majority of the emloyees in the bargaining unit,
the evidence must indicate that on the date of the refusal (or an act
of bad faith tantamount to'refusal), the Union represented an actual
majority. Unless this condition is met on that date, the Union was
not competent to act'as the representative of the employees, and there-
fore no question can arise as to whether or not the respondent was
bargaining with it in good faith. Indeed, if an employer continues
to bargain with a union after it loses its majority, and-a closed-shop
contract is consummated (a not infrequent result of collective bar-
gaining), such contract would undoubtedly not be valid under the
provisos of Section 8 (3).
If we apply these fundamental principles to the instant case, we are
confronted with a-situation in which a union established its majority
to the satisfaction of the Regional Office and the respondent on'
September 17, 1941, by proving that it received authorizations from
27 out of the 46 employees deemed to' comprise an appropriate bar-
gaining unit, but failed to maintain its majority status before any
agreement was concluded among the parties. Sometime prior to
October 30, when the bargaining conferences were broken off by the
respondent for reasons which indicate bad faith, additional persons
had become employees of the Company. The Union had failed to
enlist a proportionate share of the new employees. There is no
evidence that the respondent added these employees to the pay roll
for any reason other, than normal expansion of its business, nor is
there any evidence that the Union's failure to secure authorizations
from these new employees was due to any act of the respondent.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
The case therefore turns upon the question of whether or not the
respondent, was guilty of any actions between September 17 and
October 30 which amounted to a refusal to bargain. I confess that
I cannot find the evidence which supports such a finding.
On September 2, 1941; the Union, claiming to represent a majority
of respondent's employees, requested recognition.
On September 17, the respondent asserted in writing its willingness
to bargain, stating: "This letter will acknowledge our willingness to
bargain with an appropriate unit of your organization on behalf of
such of our employees as may come properly within your jurisdic-
tion." The majority of the Board finds this statement equivocal.
It concludes that the respondent was deliberately 'dilatory and creat-
ing issues upon which subsequent bargaining negotiations would
flounder. But such a finding fails to give due weight to the re-
spondent's explanation of the wording of this communication,
although intrinsically plausible and amply supported by extrinsic,
,evidence. The respondent contends that because of the nature of its
business a dispute arose as to whether the Cleaners and Dyers Union
of the Amalgamated, the Bushelmen's Section of Local.'25 of the
Amalgamated, or yet' another affiliate of the Amalgamated had
jurisdiction over the respondent's 'employees. The fact that the'
petitioning union in this case is the New York Joint Board of the'
Amalgamated Clothing Workers of America confirms the existence
of such ^a dispute and indicates the' unusual manner of its solution.
With this background, the inference is compelling that the respond-
ent's letter conditioned recognition only 'upon settlement of the. dis-
pute among the various affiliates of the Amalgamated and had no'
reference whatever to the inclusion or exclusion of the employees of
the respondent's subsidiary, American Jobbing Corporation, in,the'
appropriate unit.
In any event, however, immediately upon notification that this
letter was unsatisfactory to the Union, the respondent, on September
27, reiterated its recognition of the Union in the following terms :
"We hereby, recognize your 'organization as the sole collective
bargaining agent for the production employees of this address."
My colleagues, regard the reference to "employees of this address" as
a studied ambiguity, indicating that the respondent thereby intended
to leave 'open the unit question as an excuse for impeding subsequent
negotiations. 'It is undisputed, however, that another Dadourian
Corporation, entirely unrelated to the respondent; maintained a place
of business just a few doors away. Under these circumstances, ref-
erence to the address of the respondent was natural and prudent
business practice and no inference of bad faith can be' drawn there-
DADOI7RIAN EXPORT CORPORATION 513
from. The Union did not protest this form of recognition, and bar-
gaining negotiations proceeded normally until October 30.
Not only does the record contain no evidence to support an
inference that the respondent was not bargaining in absolute good
faith between September 17 and October 30, at which time the
Union had lost its majority, but there is affirmative evidence to the
contrary. On October 14, the respondent addressed a communication
to the Union informing it that the work of two of the respondent's
employees was unsatisfactory and that if their work did not improve
the respondent would be compelled to discharge them. This evidence
that the respondent voluntarily negotiated with the Union on an
essential and practical problem of collective bargaining negatives
any inference that the respondent at this time was not acting in good
faith. a
504086-43-33