Universal File Exchange, Inc.

National Labor Relations Board - Board Decisions

Jul 1, 1939

13 N.L.R.B. 484 (N.L.R.B. 1939)

In the Matter Of UNIVERSAL FILM EXCHANGE , INC. and UNITED OFFICE
& PROFESSIONAL WORKERS OF AMERICA, LOCAL No. 2
Cases Nos. C-787 and R-819.-Decided July 1, 1939
Motion Picture Booking IndustryInterference , Restraint, and Coercion: by
refusal to bargain-Unit Appropriate for Collective Bargaining : office workers;
excluding bookers and supervisors-Representatives : proof of choice:,member-
ship cards compared with pay roll-Collective Bargaining : refusal to meet with
representatives ; sit-down strike no bar to Board 's order to bargain after respond-
ent reinstated strikers-Investigation of Representatives : petition for, dismissed
in view of order to employer to bargain.
Mr. Jerome I. Maclit, for the Board.
Wolf, Block, Schorr and Solis-Cohen, by Mr. Alfred L. Wolf, of
Philadelphia, Pa., for the respondent.
Mr. Louis Vennett, of Philadelphia, Pa., for the Union.
Mr. Louis Cokin, of counsel to the'Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On January 6, 1938, United Office & Professional Workers of
America, Local No. 2, herein called the Union, filed amended charges
alleging that Universal Film Exchange, Inc., Philadelphia, Penxsyl-
vania, herein called the respondent, had engaged in and was engaging
in certain unfair labor practices.
On January 6 and 20, 1938, respectively, the Union filed with the
Regional Director a petition and an amended petition alleging that
a question affecting commerce had arisen concerning representation
of employees of the respondent , and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the Act.
On January 17, 1938, and March 12, 1938, respectively, the Board,
acting, pursuant to Article III, Section 10 (c) (2), of National Labor
Relations Board Rules and Regulations-Series 1, as amended, ordered
that the cases be consolidated for purposes of a hearing and, acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
said Rules and Regulations , ordered an investigation on the petition
13 N. L . R. B., No. 55.
484
UNIVERSAL FILM EXCHANGE, INCORPORATED 485
and authorized the Regional Director to conduct it and to provide
for an appropriate hearing upon due notice.
Upon the amended charges filed by the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Fourth Region (Philadelphia, Pennsylvania), issued its com-
plaint dated March 25,1938, 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.
The'complaint alleged in substance that on June 11, 1937, and there-
after, the respondent refused to bargain collectively with the Union
as the exclusive representative of the respondent's office employees,
comprising an appropriate unit, although a majority of said employees
had designated the Union as their representative for such purpose, and
that by these acts, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
On April 1, 1938, the respondent filed its answer denying that its
activities are interstate in nature and denying the essential allegations
concerning the unfair labor practices.
Pursuant to notice, duly served upon the respondent, upon the
Union, and upon International Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators of the United States
and Canada, a labor organization, herein called the Alliance, a joint
hearing on the petition and the complaint was held at Philadelphia,
Pennsylvania, on May 26 and 27, 1938, before Harlow Hurley, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel, and the Union by its repre-
sentative; all participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. At the close of
the Board's case, counsel for the Board moved to conform the plead-
ings to the proof. The motion was granted. Counsel for respond-
ent, at this time, moved to dismiss the complaint. The motion was
denied. During the course of the hearing, the Trial Examiner made
several rulings on other motions and on objections to the admission
of evidence. The Board has reviewed all the rulings of the Trial
Examiner and finds no prejudicial errors were committed. The
rulings are hereby affirmed.
On July 18,1938, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon all the parties, in which he
found that the respondent had engaged in and was engaging in the
unfair labor practices alleged in the complaint. He accordingly re-
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486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commended that the respondent cease and desist from engaging in
the unfair labor practices and, upon request, bargain with the Union
as the exclusive representative of its office workers with respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment. On August 2, 1938, the respondent filed exceptions to the
Intermediate Report and requested permission to argue the case orally
before the Board.
Pursuant to notice duly served on all the parties, a hearing for the
purpose of oral argument was held before the Board on April 14,
1939, in Washington, D. C. The respondent was represented by coun-
sel, and the Union by its representative, and both participated in the
argument. The respondent also filed a brief on April 14, 1939.
The Board has considered the respondent's exceptions! to the Inter-
mediate Report and the arguments made in its brief and, in so far as
they are inconsistent with the findings, conclusions, and order below
set forth, finds them to be without merit.
Upon the entire record in the proceeding, the Board makes the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation with its principal office
in New York City. It maintains a plant in Philadelphia where it
is engaged in the business of booking, selling, and distributing motion
picture films and accessories. All the films and accessories are shipped
to the Philadelphia branch from points outside the Commonwealth
of Pennsylvania, and in turn, 25 per cent are shipped to points in
New Jersey and Delaware.
The respondent, at its Philadelphia branch, does an annual business
amounting to approximately $500,000 and employs an average of 35
employees, 12 of whom are office workers.
H. THE ORGANIZATION INVOLVED
United Office & Professional Workers of America, Local No. 2, is a
labor organization affiliated with the Congress of Industrial Organi-
zations. It admits to membership all office, clerical, and professional
workers in the respondent's plant, excluding industrial agents.
III. THE UNFAIR LABOR PRAGI CES
A. The appropriate it
The Union urged that all the office workers in the Philadelphia
plant, except supervisory employees, constitute a unit appropriate for
UNIVERSAL FILM EXCHANGE, INCORPORATED 487
the purposes of collective bargaining. In its answer, the respondent
denied that a unit consisting only of the office workers is appropriate.
The respondent in its brief, points out that all the workers in the plant,
exclusive of those desired by the Union, belonged to the Alliance, that
the work of all the employees was integrated, and that they were all
paid on the same basis, thus attempting to show that all the employees
in the plant should be in one unit. It appears, however, that the
respondent's office workers are not eligible to membership in the
Alliance or any other labor organization in Philadelphia other than
the Union and, further, that the workers in the plant other than the
office employees are engaged in manual labor. The respondent's con-
tentions, therefore, have no merit.
There are two employees in the plant known as bookers. Both are
members of the Alliance, and one testified at the hearing that he wished
to' be represented by the Alliance. Although they work in the office
with the clerical employees, the bookers direct the shipping and
receiving of films and accessories.
Their work is closely allied with that of the shippers and receivers
who are represented by the Alliance. We shall, therefore, exclude
them from the unit.
We find that all the office workers at the respondent's Philadelphia
plant, excluding bookers and supervisors, constitute a unit appropri-
ate for the purposes of collective bargaining and that said unit insures
to employees of the respondent the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuates
the policies of the Act.
B. Representation by the Union o l a majority in the appropriate unit
The complaint alleges that the Union had been designated by the
employees in the appropriate unit as their representatives for the
purpose of collective bargaining. The respondent prepared lists of
its employees for the pay-roll periods ending June 12 and July 3, 1937,
and April 2, 1938, which were introduced in evidence, as were the
Union's membership cards. All the cards were signed in the presence
of Louis Vennett, the union organizer. A comparison of the member-
ship cards with the lists of employees prepared by the respondent
reveals that of the 12 employees in the appropriate unit on June 12,
1937, all were members of the Union, that of the 13 employees in the
appropriate unit on July 3, 1937, 12 were members of the Union, and
that of the 12 employees in the appropriate unit on April 2, 1938, all
were members of the Union.
We therefore find that on June 12, 1937, and at all times thereafter
the Union was the duly designated representative of a majority of
the employees in the appropriate unit and that by virtue of Section
Ogg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9 (a) of the Act, was the-exclusive representative of all employees;
in the unit for the purposes of collective bargaining.
C. The refusal to bargain
The Union commenced its organization activities with a meeting
of the respondent's office workers on June 11, 1937. All the office
workers joined the Union at this meeting in the presence of Vennett.
On June 13, 1937, Vennett called Joseph Engle, the manager of the
respondent's Philadelphia plant, and made an appointment to see him.
The following day, Vennett told Engle that Vennett represented the
majority of the office workers at the plant and presented a proposed
contract. Engle stated that he had no authority to enter into negotia-
tions on behalf of the respondent, but would refer the matter to the
New York office. After waiting several days, Vennett wrote a letter
to O. C. Binder, manager of branch operations, at the New York office
of the respondent stating that the Union represented a majority of
the respondent's office workers in Philadelphia, that a proposed collec-
tive bargaining contract had been left with Engle, and that Vennett
requested a conference for the purposes of collective bargaining. On
July 2, 1937, Binder replied as follows :
I am in receipt of your letter of June 25th in which you claim -
to represent certain employees in our Philadelphia Exchange.
You also say that it is obligatory upon us to confer with you as
the representative of these employees.
While we are willing to confer with the representative of our
employees when such representative has been properly designated,
we do not consider that you have legally established your position
and for that reason we are not willing to confer with you at this
time.
We find that by Binder's letter the respondent refused to bargain
collectively with the Union. If the respondent had entertained a
reasonable doubt as to the designation of the Union by a majority of
its office employees, it might have required proof thereof as a condi-
tion to bargaining. The afore-mentioned letter, however, indicates
no such doubt, and does not even ask for proof along such lines; it is
a curt refusal to meet with the representative of the Union. We are
convinced that the respondent did not attempt to determine whether
the Union represented the office employees, but sought only to obstruct
and delay the Union's efforts to bargain for them. The respondent's
alleged ignorance of Vennett's status does not, under the circum-
stances, justify its failure to bargain with the Union.
The office workers met on July 7, 1937, and after discussing the
respondent's letter, unanimously voted to go on strike for recogni-
tion. The office employees came to work on July 8, 1937, but sat at
UNIVERSAL FILM EXCHANGE, INCORPORATED 489
their desks all day without performing their daily tasks. Although
they originally intended to leave their desks at the usual time that
afternoon, a rumor was circulated that they would not be allowed in
the plant the following day. As a result, the office workers staged
a "sit-down" strike which lasted 5 days and 4 nights. There was no
destruction of property or violence during the "sit-down" strike and
'the strikers vacated the premises when they were subpenaed to appear
in an injunction proceeding instituted by the respondent. The re-
spondent at no time discharged or discriminated against any of the
-employees involved in the strike. The record shows that all the office
workers were considered satisfactory by the respondent and were rein-
stated with an increase in salary after the strike.
Between July 13 and September 1, 1937, the Union's attorney at-
tempted several times, but with no success, to confer with the respond-
ent's attorney for the purposes of collective bargaining. On September
1, 1937, the attorneys for the Union sent a registered letter to Binder
at the New York office of the respondent asking for an appointment
-to discuss negotiations. It appears that copies of this letter were also
-sent to Engle and to the attorney for the respondent in Philadelphia.
No reply to this letter was ever received by the Union. At no time
was the Union accorded an opportunity to discuss a contract with the
respondent.
The respondent at the hearing contended it did not bargain with
the Union because "there had been shown no authority in the person
who asserts authority by any legal means to have formed any group
,or to have acted for any group." As we have stated, the respondent
.at no time indicated that it was seeking to be satisfied as to the desig-
nation of the Union by a majority of the office employees. The
respondent's contention is, therefore, without merit.
Although at the time of the hearing the respondent raised no objec-
tion to bargaining with the office workers on the ground that they had
-engaged in a "sit-down" strike, counsel for respondent contended at
the oral argument before the Board that it did not have to bargain
with the employees who had at one time engaged in such a strike.
The respondent, relying on the Supreme Court's decision in the
.Fanzsteel case,' contended that the respondent had the right to dis-
charge the striking employees, and was therefore under no obligation
to bargain with them under Section 8 (5) of the Act. While the
respondent may have stood absolved by the conduct of those engaged
in the "sit-down" strike from any duty to reemploy them, the respond-
ent was nevertheless free to offer them reemployment if it chose. By
reinstating these workers to their former positions, the respondent
-accepted them as employees with -all the rights of employees under
' National Labor Relations Board v Fanateel Metalltargwal porporation, 306 U S 240.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. - To sustain the contentions of the respondent would involve
recognition of its right forever in the future to disregard with im-
punity wage and hour, safety, and sanitation legislation as to these
employees merely because they had on a previous occasion engaged
in a "sit-down" strike. The argument of the respondent is obviously
without merit.
We find that the respondent at all times since July 2, 1937, has
refused to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit and has thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and have led
and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE PETITION
In view of the findings in Section III above as to the appropriate,
unit and the designation of the Union by a majority of the respondent's,
employees as their representative, it is not necessary to consider the
petition of the Union for certification of representatives. Conse-
quently, the petition for certification will be dismissed.
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. United Office & Professional Workers of America, Local No. 2, is
a labor organization, within the meaning of Section 2 (5) of the Act.
2. All the office workers of the respondent at its Philadelphia,
Pennsylvania, plant, excluding bookers and supervisors, constitute a
unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
3. United Office & Professional Workers of America, Local No. 2,
is and has been at all times since June 12, 1937, the exclusive represen-
tative of all the employees in such unit for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing and continuing to refuse to bargain collectively
with United Office & Professional Workers of America, Local No. 2,
as the exclusive representative of all the employees in such unit, the
UNIVERSAL FILM EXCHANGE, INCORPORATED 491
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
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 foregoing 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 Uni-
versal Film Exchange, Inc., Philadelphia , Pennsylvania , and its
officers , agents, successors , and assigns shall:
1. Cease and desist :
(a) From refusing to bargain collectively with United Office &
Professional Workers of America, Local No. 2, as the exclusive repre-
sentative of all its office workers, except bookers and supervisors;
(b) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self -organization,
to form, join , or assist labor organizations , to bargain collectively
through representatives of their own choosing and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid and 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 United Office & Pro-
fessional Workers of America, Local No. 2, as the exclusive representa-
tive of all the office workers at its Philadelphia, Pennsylvania , plant,
excluding bookers and supervisors , with respect to rates of pay , wages,
hours of employment , and other conditions of employment;
(b) Immediately post notices in conspicuous places throughout its
plant, and maintain such notices for a period of sixty ( 60) consecutive
days, stating that the respondent will cease and desist as aforesaid and
will take the affirmative action set forth in paragraph 2 (a) ;
(c) Notify the Regional Director for the Fourth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives be, and it hereby is, dismissed.
MR. WILLIAM M. LEISERSON took no part in the consideration of the-
above Decision and Order.