Ace Sample Card Co.

National Labor Relations Board - Board Decisions

Dec 19, 1942

46 N.L.R.B. 129 (N.L.R.B. 1942)

In the Matter of HARRY STEIN AND ARTHUR CALDF, INDIVIDUALLY AND
AS CO-PARTNERS, DOING BUSINESS UNDER THE TRADE ELAND STYLE OF
ACE SAMPLE CARD COMPANY and HARRY STEIN, AN INDIVIDUAL, DOING
BUSINESS UNDER THE TRADE NAME AND STYLE OF ACE SAMPLE CARD
COMPANY and WHOLESALE AND WAREHOUSE WORKERS UNION LOCAL
65, C..I. O. and SAMPLE CARD AND ALLIED WORKERS LOCAL 413, IN-
TERNATIONAL BROTHERHOOD OF PULP, SULPHITE, AND PAPER MILL
WORKERS, A.F. OF L., PARTY TO THE CONTRACT
Case No. C-20326.-Decided December 19, 1942
Jurisdiction : sample card manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: execution of closed-shop contract with
affiliated labor organization that did not represent a majority of the employees;
threatening employees with discharge if they did not join affiliated union
with which employer executed illegal closed-shop contract.
Discrimination: depriving laid-off employees of their seniority rights which
would have governed the order in which they would have been recalled, and
failure to reinstate them as result of enforcement of an invalid closed-shop
contract executed with an assisted organization, pursuant to which new
employees and old employees with less seniority were given preference of
employment ; charges of discriminatory lay-off, dismissed.
Collective Bargaining: charges of refusal to bargain collectively, dismissed for
lack of majority, where employees had executed authorization cards in two
labor organizations and there was no substantial evidence as to which labor
organization they desired to represent them.
Remedial Orders : cease and desist unfair labor practices; withhold recognition
from assisted affiliated union as representative of any employees until cer-
tified ; cease giving effect to closed-shop contract with assisted affiliated union
which did not represent a majority at the time contract was executed; offer
reinstatement with back pay to employees denied reinstatement because of
enforcement of illegal, closed-shop contract and set up preferential list for
those for whom no work is presently available.
Unit Appropriate for Collective Bargaining : production workers, excluding
salesmen , and supervisory, and clerical employees.
DECISION
AND
ORDER
• -On September 10, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
46 N: L. R. B., No. 21.
504086-43-vol 46-9 429
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had engaged in and were engaging in certain unfair labor practices
and recommended that they cease and desist therefrom and take certain
affirmative action as set out in the copy of the Intermediate Report
attached hereto . Thereafter respondent Stein and Local 413 filed ex-
cept ions to the Intermediate Report and requested oral argument before-
the Board . Pursuant to notice served on all parties , a hearing for the
purpose of oral argument was held before the Board in Washington,
D. C., on November 10, 1942. Local 413 was represented by counsel and
participated in the argument. Neither of the respondents nor Local 65
appeared . The Board has considered the rulings of the Trial Exami-
ner at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report , the exceptions , and the entire record in the case, and
hereby adopts the findings , conclusions , and recommendations of the
Trial Examiner except in the respects noted below.
1. The Trial Examiner found that at the time the closed -shop contract
between respondents and Local 413 was executed , Local 413 represented
11 out of 23 employees in the appropriate unit. Sylvia Markowitz was
I of the 11 who had signed a Local 413 designation . Her name is not
among the 23 in the unit who were on the respondents' pay roll at the
time the contract was executed . She was apparently laid off at the
time, as the respondents ' pay-roll records indicate that she was em-
ployed by the respondents prior to July 1941 and was recalled in Octo-
ber 1941. Adding her name to the list of employees in the unit makes
a total of 24 employees in the unit at the time of the execution of the
contract , and Local 413 was not designated by a majority of the em-
ployees in the unit at the time the contract was executed.-
2. The Trial Examiner found that on August 27, 1941, 16 of the 23
employees in the unit found to be appropriate designated Local 65 as
their representative for the purposes of collective bargaining ; that on
and at all times since that date, Local 65 was and is the duly designated
representative of a majority of the employees in the unit found to be
appropriate ; and that, by virtue of Section ( a) of the Act, Local 65
was and now is the exclusive representative of all employees in such
unit for the purposes of collective bargaining in respect to rates of pay,
wages , hours of employment , or other conditions of employment. In
reaching this conclusion , the Trial Examiner rihl i,e,,i con s ider the fact
that 6 of the 16 persons who uesignated Local 65 to represent them also
designated Local 413 to represent them for the purposes of collective
bargaining. There is no evidence in the record concerning the circum-
1 we fird it unnecessary to determine whether Millie DeTose, forelady, should be included
within the unit for the purpose of determining whether Local 413 represented a majority
at the time the contract was executed because if she was included, Local 413, at the most,
would have been designated by 12 out of a total of 25 employees in the unit, which is
not a majority.
HARRY STEIN AND ARTHUR CALDER 131
stances under which 4 of the 6 duplicate cards were signed. Faye
Pfeffer, one of the remaining 2 who signed duplicate cards, testified,
inter alia, that after she designated Local 65 as her bargaining agent,
she concluded that she would prefer Local 413 as her representative
because it was a "sample card union." Under these circumstances, we
are unable to determine from the record that 5 of the 6 who signed
duplicate cards desire exclusive representation by Local 65 rather than
by Local 413. In addition, as found above, Sylvia Markowitz should
be included in the unit, which makes a total of 24 in the unit, as of Au-
gust 27, 1941. When the 5 duplicate authorizations. referred to above
are deducted from the 16 Local 65 authorizations, there remain 11 who
authorized Local 65, and this is not a majority of the employees in the
appropriate unit. We therefore find that Local 65 did not represent a
majority of the employees in the unit, and was not the exclusive repre-
sentative of the employees within the meaning of Section 9 (a) of the.
Act. It follows from the above and we find that the respondents did
not refuse to bargain with Local 65 within the meaning of Section 8 (5)
of the Act and wee shall order that the complaint be dismissed insofar
as it alleges that the respondents refused to bargain with Local 65 in
violation of the Act.2
3. The Trial Examiner found that Angela Bascetta, Mary Bas-
cetta, Josephine D'Amato, Rose Guiliano, Tessie Guiliano, Jennie
Sabatino, Lee Sabatino, Josephine Sabatino, Goldie Starker, and
Helen Tropper, alleged by the complaint to have been discriminated
against, were laid off because of lack of work in accordance with the
respondents' seniority policy and therefore were not discriminated
against because of their membership in Local 65 at the time of their
lay-offs. The Trial Examiner also found that subsequent to the lay-
offs the respondents discriminated against those named in the com-
plaint by giving effect to the illegal contract with Local 413, by hiring
3 new employees as mounters through Local 413, and by failing to
recall any of the laid-off employees in accordance with the respond-
ents' usual seniority practice. Subsequent to December 11, 1941, the
respondents enforced the illegal contract with Local 413 which re-
quired the respondents to hire new employees through Local 413, and
the employees to maintain membership in Local 413. This was an
illegal condition of employment. The record indicates that the re-
spondents discriminated against the 10 employees named in the com-
plaint to a greater extent than found by the Trial Examiner. After
the lay-offs of the 10 persons named in the complaint, the respondents,
in addition to hiring the 3' new employees, as found by the Trial Ex-
2 When the effect of the respondents ' unfair labor practices is dissipated by compliance
with our Order, we shall be prepared to entertain a petition for investigation and certifica-
tion of representatives pursuant to section 9 (c) of the Act.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
^ - r
aminer, rehired through Local 413 Sylvia Markowitz and Carmellia
Novellino, mounters,3 who had less seniority than any. of the employ-
ees named in the complaint with the-exception of Angela Bascetta, to
perform work which could have been performed by those named in
rthe complaint. It also appears from the respondents' pay-roll records
that Elsie Miller and Helen Fischer were hired in December 1941 and
subsequent to the lay-offs of the employees named in the complaint.
The record does not disclose the type of work the latter 2 performed.
All employees named in the complaint are mounters except Mary Bas-
cetta, who is a checker. Stein testified, and we find, that occasionally
employees were transferred to different positions in the plant. The
record indicates that most of the work in the respondents' plant is un-
skilled, and there is no reason to believe that the employees named in
the complaint could not have performed the work for which Elsie
Miller and Helen Fischer were hired.
The employees named in the complaint had been laid off with senior-
ity rights earned while employed by the respondents. Their seniority
standing is a term of employment governing the amount of work they
receive, as well as the order in which they are to b'e laid off and re-
called. The immediate result of the respondents' action in giving
effect to the contract with Local 413, so far as the employees named in
the,complaint were concerned, was to deprive them of their status as
laid-off employees with accrued seniority rights, because they lost the
.right to be recalled in accordance with the seniority standing which
they had earned. We have found that the contract between the re-
spondents and Local 413 was entered into in violation of Section 8 (1)
and (31 of the Act. We further find that, by depriving the employees
named in the complaint of their status of laid-off employees with
seniority rights through enforcing the illegal contract, the respondents
discriminated with regard to hire and tenure of employment and the
terms and conditions of employment of its employees named in the
,complaint.' We also find that the respondents discriminated in regard
to the hire and tenure of employment of the 7 employees named in the
complaint who had the greatest amount of seniority and who would
have been recalled in accordance with their seniority standing, if,the
respondents had not discriminated against them by disregarding the
seniority policy in giving effect to the illegal contract with Local 413
and hiring 7 new employees through Local 413.
S There is conflict in the evidence concerning the occupation of Novellino. Board's
Exhibit 12, which was prepared by the respondents lists her as a "numberer." When
Novellino signed a card for Local 413 she listed her occupation as mounter Respondents'
Exhibit 1 , lists her as a mounter and Angela Bascetta testified that Novellino was a
mounter. We find that Novellino was a mounter. -
°See Matter of Butler Brothers , a corporation and Alex Waste if, doing business as Alex
'Waslef Building Maintenance Co and Elevator Operators and Starters Union Local No. 66,-
affiliated with the American Federation of Labor, 41 N. L R B. 843, 866.
I
HARRY STEIN- AND ARTHUR CALDER 133
Since the respondents (1) discriminated against the 7 employees
named in the complaint who had the greatest amount of seniority by'
hiring 7 new employees through Local 413 for jobs that could have been
filled by those named in the complaint; 'and (2) discriminated against
all 10 employees named in the complaint by depriving, them of their
seniority rights, and since we are unable to determine from the record
the number of employees presently required by the respondents in the
operation of their business, or whether the respondents continued to
discriminate by hiring additional new employees to perform work
which could have been performed by the employees named in the com-
plaint, we shall order the respondents to offer immediate and full re-
instatement to the 10 employees named in the complaint to their former
or substantially equivalent positions, or if no such position be avail-
able, then-to any position for which each may be qualified,- which is
occupied by any person hired subsequent to the lay-off of any of the,
10 employees or by any employee rehired subsequent to the lay-offs
of the employees named in the complaint in violation of the respond-,
ents' usual seniority practice, without prejudice to their seniority or
other rights and privileges. All new employees, or such, number; as
may be necessary, hired subsequent to the lay-offs of the 10 employees
named in the complaint to perform work which could have been per-
formed by any of the 10 shall be dismissed, if necessary to provide em-
ployment for those to be offered and who shall accept reinstatement.
All employees who were rehired in violation of the respondents' usual
seniority practice subsequent to the lay-offs of the employees named
in the complaint shall be laid off, if necessary to provide employment
for those to be offered and who shall accept reinstatement, provided
that those to be offered reinstatement had at the time of the lay-off
greater seniority and would have, except for the respondents' discrimi-
nation, been recalled prior to those herein directed to be laid off. If,
however, by reason of a reduction in force, there are not immediately
available sufficient positions for all employees, including those who
are to be reinstated, all available positions shall be distributed among
all employees, in accordance with the respondents' usual seniority prat,
tice without discriminating against- any employee because of union
affiliation or activities. Those employees remaining after such dis-
tribution for whom no employment is immediately available and those
who, in accordance with what has been set forth above, are reinstated
not to their former or substantially equivalent positions but 'to posi-
tions for which they may be qualified, shall be placed upon a prefer-
ential list with priority determined among them in accordance with
the respondents' usual seniority practice, and thereafter, in accordance
with such list, shall be offered reinstatement by the respondents to
their former or substantially equivalent positions'as such employment
134 DECISIONS-.OF NATIONAL LABOR RELATIONS BOARD
becomes available, and before other persons are hired for such work .5
Further, we shall order the respondents to make whole the employees
named. in the complaint for any loss of pay they may have suffered
by reason of :the respondents'- di§crimination against them, by pay-
ment to each a sum of money equal to the amount that each would
normally have earned between the dates each should have -been re-
called if the respondents had not discriminated to the date of the offer
of reinstatement or to the date of placement on the preferential list
hereinabove described, less net earnings during, such period. The
meaning of net earnings is set forth in footnote 31 of the Trial Ex-
aminer's Intermediate Report attached hereto.
ORDER • ,
Upon the entire record in the case, and pursuant to Section 10 (c)
^6f the National Labor Relations Act, the National Labor Relations
Board hereby orders that Harry Stein and Arthur Calder, individually
and as co-partners, doing business as Ace Sample Card 'Company;
heir officers, agents, successors, and assigns, shall :
`1. Cease and desist from : '
/(a) Recognizing or in any manner dealing with Sample Card and
Allied, Workers Local 413, International Brotherhood of Pulp,
Sulphite, and Paper Mill Workers, A. F. of L., as the exclusive
representative of their employees in respect to-grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment, unless and until that labor' organization shall be
certified as such by the National Labor Relations Board;
(b) Giving effect to the contract of August 22, 1941, with Sample
Card and Allied Workers Local 413, International Brotherhood of
Pulp, Sulphite, and Paper Mill Workers, A. F. of L., or to any
'extension, renewal, modification, or supplement thereof, or to any -
superseding contract with said organization which may now be in
`force;
(c) Discouraging membership in Wholesale and Warehouse Work-
ers Union, Local 65, C. I. 0., or in any other labor organization of
their employees or encouraging membership in Sample Card 'and
Allied Workers Local 413, International Brotherhood of Pulp, Sul-
phite, and Paper Mill Workers, A. F. of L., or in any other labor
organization of their employees by refusing to reinstate any of
their employees, or by discriminating in any other manner in regard
to their hire and tenure of employment or any term or condition of
employment;
s Wilson & Co, Ino v N L R B, 124 F. (2d) 845, 848 enforcing ; Matter of Wilson
Co, Inc and United Packinghouse Workers of America, Local No 4.9, C. I. 0., 30 N. L.
R. B. 314, 335-337.
HARRY STEIN AND .ARTHUR CALDER 135
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form, join, or-assist labor organizations, to bargain collectively through
representatives 'of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining 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) Withdraw and withhold all recognition from Sample Card
and Allied Workers Local '413, International, Brotherhood of Pulp,
Sulphite, and Paper'Mill Workers, A. F. of L., as the; exclusive repre-
sentative of the employees for the purposes of dealing with, the
respondents concerning grievances,' labor disputes, wages, 'rates of
pay, hours of employment, or other conditions of employment, unless
and until that labor organization shall have been certified as such by
the National Labor Relations Board, provided that nothing in this
Order shall be interpreted to authorize respondents to reduce wages
or establish working conditions less favorable than were established
pursuant to the contract;'
(b) Offer to Angela _Bascetta, Mary Bascetta, Tessie Guiliano, Rose
Guiliano, Lee,Sabatino, Josephine Sabatino, Jennie Sabatino, Jose-
phine D'Amato, Helen Tropper, and Goldie Starker immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges in
,the manner set forth in paragraph 3 of the Decision, placing those
employees for whom employment is 'not immediately available upon
a preferential list in the manner set forth in said paragraph and
thereafter, in said manner, offer them employment as it becomes avail-
able for any or all of them;
(c) Make whole Angela Bascetta, Mary Bascetta, Tessie Guiliano,
Rose Guiliano, Lee Sabatino, Josephine Sabatino, Jennie Sabatino,
Josephine D'Amato, Helen Tropper, and Goldie Starker for any loss
of pay each may have suffered by reason of the respondents' dis-
crimination against her by payment to each a sum of money equal to
that which each would normally have earned as wages between the date
,each would have been reinstated if the respondents had not discrimi-,
nated to the date of the offer of reinstatement or placement upon the
preferential list, less her net earnings, if any, during such period;
(d) Post immediately in conspicuous places throughout their plant
and maintain for a period of at least sixty (60) consecutive days from
the date of posting notices to their employees stating ,(1) that re-
spondents will not engage in the conduct from which they are ordered
to cease and desist in paragraphs 1- (a), (b), (c), and (d) of this
Order; (2) that the respondents will take the affirmative action set
136, DECISIONS ,OF-,NATIONAL LABOR RELATIONS BOARD
forth in paragraphs 2 (a), (b), and (c) 'of 'this'Order; and (3) that
the respondents employees are' free to become or remain members of
Wholesale and Warehouse Workers Union, Local 65, C. I. 0., and that
the respondents will not discriminate against any of its employees
because of their membership in or activity on behalf of that organ-
ization;
(e) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order what steps the
respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be and it hereby is dis-
missed insofar as it alleges that the respondents refused to bargain
collectively with Wholesale and Warehouse Workers Union, Local 65,
C. 1. 0., in violation of Section 8 (5) of the Act.
INTERMEDIATE REPORT
Mr. John J. Cuneo, for the Board.
Mr. David Lapidus, of New York, N. Y., for the Ace Sample Card Company and
Harry Stein. I `
Edward Kuntz by Mr. Sidney N. Gitelman, of New. York, N. Y., and Mr. Charles
Ravitch, of Brooklyn, N. Y., for Local 65, C. I. 0. -
Mr. Leo Greenfield and Mr. Jack Margolis, of New York, N. Y., for Local 413,
A. F. of L.
STATEMENT OF THE CASE
Upon a second amended charge' duly filed on June 10, 1942, by .Wholesale and
Warehouse Workers'Union 65, C.- I. 0. affiliated with the Congress of Industrial
Organizations, herein called Local 65, the National Labor Relations Board, herein
called the Board, by its Regional Director for the Second Region, (New York, New
York), issued its amended complaint' dated June 10, 1942, against Harry Stein
and Arthur Calder, individually and as co-partners doing business under the trade
name and style of Ace Sample Card Company, and Harry Stein, an individual,
doing business under the trade name and style of Ace Sample Card Company, 114
Bleecker Street, New York, New York, herein called the respondents, alleging
that the respondents had 'engaged in and were 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 Act. Copies of the amended complaint and notice of hearing thereon were
duly served upon the respondents, Local 65, and Sample Card and Allied Workers,
Local 413, International Brotherhood' of Pulp, Sulphite, and Paper Mill Workers,
A. F. of L, affilated with the American Federation of Labor, party to the contract,
herein called Local 413.
With respect to the unfair labor practices, the amended complaint alleges in
substance: (1) that on or about August 22, 1941, the respondents, entered into a
closed-shop agreement with Local 413, although Local 413 did not represent a
majority of the respondents' employees in the bargaining unit covered by the
agreement; and therefore the agreement is invalid and is in violation of the
Act; that on and after August 25, 1941, the respondents have urged, persuaded,
3 The original charge was filed on November 21, 1941, the first amended charge on June
6, 1942, the second amended charge on June 10, 1942.
' The original complaint was dated June 6, 1942.
HARRY STEIN AND ARTHUR CALDER 137
and warned their employees to join Local 413; threatened them with discharge or
other reprisals , if they did not become and remain members of Local 413; and
required them, as a condition of employment to become and remain members
of Local 413; (2 ) that on or about August 27 , 1941, a majority of the respondents'
employees in an appropriate unit, designated Local 65, as their representative for
the purpose 'of collective bargaining , and that at all times since August 27, 1941,
Local 65 has been the sole representative of all such employees for the purposes
of collective bargaining , within the meaning of the Act ; that on or about August
28, 1941, Local 65 requested the respondents to bargain collectively with it, as
the sole representative of the respondents ' employees , in respect to rates of pay,
wages, hours of employment , or other conditions of employment , but that the
respondents refused to do so, and have, at all times thereafter, refused to bargain
collectively with Local 65; (3) that on or about August 28, 1941 , the respondents '
discharged or laid off Angela Bascetta , and on or about December 4, 1941, dis-
charged or laid off Mary (Marie ) Bascetta , Josephine D'Amato, Rose Guiliano,
Tessie Guiliano , Jennie Sabatino , Josephine Sabatino, Lee Sabatino , Goldie
Starker , and Helen Tropper, and have thereafter refused to reinstate them, be-
cause these employees refused to join or assist Local 413, or because they joined
and assisted Local 65, and engaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protection ; and (4 ) that by the
aforesaid acts and conduct , the respondents interfered with, restrained , and co-
erced their employees in the exercise of the rights guaranteed in Section 7 of
the Act. -
On June 19 , 1942, the respondent Stein ,3 as an individual and-as the sole pro-
prietor of Ace Sample Card Company , filed- his answer admitting, certain allega-
tions of the amended complaint , but denying the alleged unfair labor practices.
No answer was filed by the respondent , Arthur Calder . On June 15, 1942, Local
413 also filed an answer.
Pursuant to notice , a hearing was held from July 9 to 16 , 1942,4 at New York,
New York, before the undersigned , the Trial Examiner duly designated by the
Chief Trial Examiner . The respondent Stein, the Board, Local 65, and Local
413, were represented by counsel , and all participated in the hearing . The re-
spondent Calder did not appear and was not represented at the hearing. Full
opportunity to be heard , to examine and cross-examine witnesses , and to intro-
duce evidence, bearing on the issues was afforded all parties.
On July 3, 1942 , Jack Margolis , president of Local 413 , requested the Regional
Director by letter to postpone the hearing until sometime after Labor Day, Sep-
tember 7 , 1942 , because Mr. Greenfield , counsel for Local 413 , was on vacation.
On July 6, 1942 , the Regional Director refused the request and advised Margolis
that he , could renew his request before the Trial Examiner at the hearing.
At the beginning of the hearing , Margolis entered his appearance as a'represent-
ative of Local 413 . After the introduction of the pleadings , Margolis moved to
adjourn the hearing to July 16, because Greenfield was on vacation and would not
return until Monday, July 13, which adjournment would give Greenfield three
days to attend to other legal matters. Counsel for the respondent Stein joined
in this motion . The motion was denied by the undersigned . The record dis-
closes that notices were sent by registered mail to all parties, including Green-
s Harry Stein testified that the partnership , existing between him and Arthur Calder,
known as the Ace Sample Card Company, was dissolved in or about April 1942 and he,
Stein, became the sole owner of the business, continuing it under the same firm name
and style , and'at the same premises.
4 The hearing was originally set for June 18, 1942. On June 17 it was postponed
indefinitely . On June 30 it was definitely set for July 9, 1942.
138 'DECISIONS • OF NATIONAL LABOR RELATIONS BOARD
field, on June 30, 1942, that the hearing would be held on July 9. Greenfield
received this notice on July 1.5 ) Notwithstanding this notice, Greenfield went on
vacation on July 3, and on the same day Margolis wrote to the Regional Director
requesting a postponement. The instant hearing began at 10 :00 a. in. on July 9,
1942 and continued until 11:35 a. in. at which time, it was' adjourned until 10
a. in. the next day, in order to give Margolis an opportunity to inform- Greenfield
that there would be no further adjournment, and that the hearing would "continue
on July 10. At the request of counsel for the respondent Stein, no hearing was
held on Saturday, July 11. Greenfield returned from vacation on July 13 and'
thereafter participated in the hearing. -
At the conclusion of the Board's case, and also at the conclusion of the respond-
ents' case, counsel for the Board moved to conform the pleadings to the proof
in respect to formal matters, such as the spelling of names, dates, and other minor)
inaccuracies. The motion, was granted without objection. -
At the conclusion of the Board's case counsel for the respondent Stein moved
to dismiss the complaint for lack of proof. Ruling on this motion was reserved'
by the undersigned and'is at this time denied
At the conclusion of the hearing counsel for Local 413 renewed his motion,
previously made to dismiss the complaint. Ruling on this motion was reserved.
by the undersigned and at this time is denied.
At the conclusion of the hearing the parties were afforded an opportunity to
argue orally before, and to file briefs with, the undersigned. Mr. Greenfield,-
counsel for Local 413, argued orally, but none of the parties filed a brief.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS °
From July 1941 to April 1942, Ace Sample Card Company was an unincorporated
company, owned and operated by Harry Stein and Arthur Calder,' as co-partners,
at premises located at 114 Bleecker Street, New York, New York, where they were
engaged in the manufacture of sample cards. On or about April 1, 1942, the part-
nership was dissolved, and Stein assumed all the assets and, liabilities of.the_
partnership and has continued the business under the same firm name and style,
of Ace Sample Card Company, at the same address The principal raw materials
used,at the plant are cardboard and other paper products, all of which, are pur-
chased in New York State. During the first 6 months of 1942, which is a repre-
sentative period of the respondents' business, such purchases amounted to.
approximately $2,000. During the same period the respondents manufactured
and sold finished products to the approximate value of $15,000, about 75 percent
of which was sold-and delivered to points outside New York. The respondent;
Stein admits that he is engaged in interstate commerce within the meaning of
the Act. The respondents normally employed approximately 23 production em-
ployees in the plant.
II. THE ORGANIZATIONS INVOLVED
Wholesale and Warehouse Workers Union , 65, C. I. O. affiliated with the Con-
gress of Industrial Organizations , is a labor organization admitting to member-
ship employees of the respondent.
° No contention was made at the instant hearing by any party in interest that the proper
10 days ' notice bad hot been given. -
° These facts were stipulated.
7 Calder was a silent partner and took no active part in the operation of the business.
HARRY STEIN AND ARTHUR CALDER 139
Sample Card and Allied Workers, Local 413, International Brotherhood of,
Pulp, Sulphite, and Paper Mill Workers, A. F. of L. affiliated with the American:
Federation of Labor, is a labor organization admitting to membership employees,
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
1. Interference, restraint, and coercion
Prior to 1941, there were no unions or union activity in the plant. On Febru-,
ary 3, 1941, Jack Margolis, president of Local 413, wrote the following letter to•
the respondents:
The above union represents a great number of employees in the sample card-
industry, also we have a number of sample card shops under contract. In'
order to promote harmonious relations we are desirous of arranging a con=
ference with your firm to establish contractural relationship. It is our
desire wherever possible to avoid 'labor disputes and to promote a better
understanding between your firm and the union. We are therefore asking
that you set a (late, at your convenience, for such a conference. We also
ask to make this appointment as soon as possible.'
Subsequent to that letter, Margolis informed the respondents by telephone that,
Local 413 had organized a majority of the plants around New York which were
engaged in the sample card industry, one of which, the Superior Card Company,:
a competitor of the respondents, was located in the same building as the respond-
ents' plant. Margolis further informed the respondents that a number of the
respondents' employees had joined Local 413.
On July 19, 1941, Margolis again wrote to the respondents advising, in sub-
stance, that Local 413 represented a majority of the respondents' employees,
and that if the respondents did not negotiate with Local 413 for the purpose of
entering into a contract, "economic pressure" would be brought to bear upon,
the respondents. A short time thereafter, Margolis went to the plant and met
Harry Stein, the managing partner of the respondents, for the first time. Mar-
golis told Stein that Local 413 had organized the sample card industry ; that he
desired to negotiate a contract with the respondents ; and that if an- agreement
were not leached, means would be found to compel the respondents to make a,
contract with Local 413. Stein said very little at that meeting.8
About that time, Stein was informed by several of the respondents' customers,,
among whom were Arnold Sales Corporation and Pacific Mills, that Local 413,
had threatened to picket them unless the respondents signed a contract with
Local 413, and that in view of these threats, they would not give the respondents
any more business until the matter was settled 8 Stein testified that, being faced.
with the loss of some of his best customers, he became "nervous and worried" ;
and that "being possessed of a belief that Mr. Margolis represented a majority of
my employees and with economic pressure brought to bear as have (sic) threat-
ened by his union, I communicated with David Lapidus, 14 John Street in the
City and State of New York and retained him to assist me to negotiate a contract
with the said union. Stein also testified that Margolis placed pickets at the
premises of some of the respondents customers, and that Margolis told these cus-
tomers not to give the respondents any business until he, Margolis, approved it;
s These findings are based upon the credible and undenied testimony of Stein.
8 This finding is based upon the credible and undenied testimony of Stein.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that as a result of this action of Margolis , two of the respondents ' most substantial
customers , Arnold Sales Corporation and Davis & Cotterale , ceased to do business
with the respondents and consequently the respondents lost considerable business.
After engaging Lapidus as counsel, Stein , Lapidus , and Morris Pfeffer, the
respondents ' accountant , had several conferences with Margolis at the office of
Local 413 . At the first conference , which was held during the first part of
August 1941, Stein asked Margolis what were the demands of Local 413. Margolis
replied that Local 413 wanted, among other things, a closed-shop contract, in-
creased wages , certain holidays, and seniority rules. Stein requested proof that
Local 413 represented a majority of his employees Margolis displayed a bundle of
cards, bound by a•rubber band, and stated that they were membership cards signed
by the respondents ' employees . However, he refused to permit Stein , Lapidus, or
Pfeffer to inspect the cards , stating that the respondents might use the informa-
tion for the purpose of discriminating against ' the employees. Several sub-
sequent meetings were held between the same conferees , at which the terms of
the contract were discussed and Stein again requested proof that Local 413
represented a majority of his employees , but Margolis' continued to refuse to
furnish it.'°
As a result of these several conferences , the respondents , on August 22, 1941,
entered into a closed-shop contract with Local 413 , and also a supplemental
agreement which dealt only with minimum wages as fixed by law. The closed-
shop contract recites in substance , inter alia , that the respondents would employ
only members of Local 413, except strictly office help and salesmen ; that em-
ployment would be made through Local 413 ; that present employees, not
members of Local 413 , would be required to join Local 413 within 2 weeks from
the execution of the contract; that seniority within each department should
apply, as far as practicable , in regard to lay-offs ; that the respondents would
not do any work for any firm against which Local 413 should have declared a
strike or should be picketing ; that employees failing to pay Local 413 dues
would be subject to discharge ; that during the life of the contract neither
Local 413 nor its members should cause, sanction , or take part in any strike
or picketing against the respondents , except upon the failure of the respondents
to comply with any award made pursuant to the terms of the contract;, and that
the contract should run for a' period of 18 months from date.
On August 26, 1941, the secretary of Local 413 went to the plant and, without
the knowledge or consent of the respondents , posted a notice , which was signed
by Margolis, on the time clock located at the entrance to the plant. The
notice stated in substance that Local 413 and the respondents had reached an
agreement ; that the plant was now a closed shop ; and that alt employees of
the respondents should go to the headquarters of Local 413 and join this local.
After posting the notice, the secretary informed Stein of that fact, and told
him that the employees who had not joined Local 413 should go to the head
• to The findings in respect ' to these conferences are,based upon the credible and undenied'
testimony of Stein and Morris Pfeffer , a certified public accountant and brother-in-law of
Stein. Pfeffer testified that he was present at three or four conferences between Margolis,
Stein, and Lapidus just prior to the signing of the contract on August 22, 1941; that at
each conference , either Stein or Lapidus demanded proof of Margolis ' assertion that
Local 413 represented a majority of the respondents ' employees , and on each occasion
Margolis refused to furnish any proof , that Margolis displayed a bunch of cards, but.
refused to allow them to be 'inspected by anyone ; that Lapidus suggested that an election
be held in the plant to determine whether or' , not the employees desired Local 413 to repre-
sent them ; that Margolis refused; to consent to an election ; that Margolis threatened to
put the respondents "out of business from an economic point of view ' by picketing and
other means at his disposal.
HARRY- STEIN AND ARTHUR CALDER , 141
quarters of Local 413 and do so. Stein then told all of the employees that the
plant was a closed shop and that they would have to join Local 413 or he would
be forced, under the terms of the agreement, to replace them. '
The notice of the agreement came, as a complete surprise to the female
employees and they immediately congregated in the ladies' dressing room and
discussed it. That afternoon Stein said to the employees, "you,see what you
have done to me? I was forced to put that notice on the time clock just
because I was told that a few of you girls had gone- down to Local 413 and
signed up." Employee Angela Bascetta said to Stein,, "I'm sorry, Harry, none
of us have signed up with Local 413 and no one is interested in Local 413, and
I am quite sure if you did not want that letter posted on the time clock it
wouldn't have been put there. We still live in the United States of America
and if you didn't want to put it there it wouldn't be put up." Stein replied, "You
don't believe me and I was forced to put it there." " About quitting time that
afternoon, Forelady Mildred DeJose; 2 told the girls that Stein wanted to see then
in the office. Theie were ubouL 16 or 17 girls working in the plant at that time.
All of them went to the office, and Stein told them that they would have to
go down to Local 413 and sign up within the next two days. Angela Bascetta,
acting as spokesman for the gitis, said, "Well, Harry, we aren't interested.
We haven't been approached by the AFL." Stein replied, "You girls put me
in such a position that I have been told that you have, to go down and sign
up." Bascetta replied, "Well, Harry, we aren't interested in the AFL. We
are more interested in the CIO." Stein then said, "What must we do with
two unions down our back?"'
The next day, August 27, Stein told the girls several times that he would
not be able to get any more business unless the girls joined Local 413. That
afternoon Forelady Mildred DeJose told the girls that Stein and his attorney,
Lapidus, wished to see them in the office. They went to the office and Lapidus
told them that Stein "was being put up against the wall"- and that he, Lapidus,
had been told that Stein was forced to make, an agreement with Margolis.
Bascetta told Lapidus that none of the girls was a mgmber of Local 413 and
none had signed an application for membership. Lapidus said that Local 413
had produced the cards. Bascetta replied, "Did they show you the names?"
Lapidus replied, "You know how these unions work. They don't want to show
the names because of fear of discrimination." Lapidus then asked the girls
what they intended to do, and he also inquired why Angela Bascetta was
doing all the talking. One of the girls then said that Bascetta was, talking
for them all. Lapidus again asked the girls what they intended to do. Bas-
cetta said that they were not going to commit themselves, but would let him
know the next morning. That meeting lasted about a half hour. It was then
after working hours and 16 of the girls immediately went to the headquarters
of Local 65."
At noon of August 27, Sigmond Goldlust, a trainee organizer for Local 65,
had contacted employee Angela Bascetta and 8 or 10 other employees of the
respondents and given them application'cards for membership in Local 65. He
had also arranged for a meeting of these employees to be held at the offices of -
Local 65. The meeting occurred that evening after working hours. Sixteen
"This finding is-based upon the credible and undenied testimony of employee Angela
Bascetta
12 Stein testified that Mildred DeJose was a forelady.
I$ This finding is based upon, the credible and undenied testimony of Angela Baseetta.
14 This finding is based upon the credible and undenied testimony of Angela Bascetta.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'of the respondents' employees w attended the -meeting and all of them signed
:application cards for membership in Local 65 and designated Local 65 as their
representative for the purposes of collective bargaining The cards were
-signed in the presence of Goldlust and were countersigned by him 10
The next day, August 28, Stein said to the employees, "See just what you
girls did to me. Just because-you wouldn't go down and sign up I am getting
telephone calls from my customers that if,you don't sign up with the AFL
J won't be able to get' any more orders." Angela Bascetta replied, "Sorry,
Stein, it is too late. We are already members of [Local] 65." Stein then
told the girls that he had received -a telephone call from Margolis to the
effect that if the girls did not go down and sign up with Local 413 they
would not be able to work in the plant. Bascetta told Stein that the girls
lid not recognize Margolis and, therefore, they refused to hear what Margolis
had to say, and if Margolis was so interested in the girls why did he not come
to them. Stein then said he would talk to Margolis on the telephone. After
about 15 or 20 minutes, Margolis came to the plant and told the girls than
the respondents and Local 413 had signed a closed-shop contract and that if
,the girls did not wish to sign up with Local 413 there would be a "lock-out"
as he had 100 girls waiting to take their places. Margolis then told the girls
that the Superior Sample Card Company, which was located in the same
building as the respondents' plant, was an A. F. of L. shop and that he
-wanted the respondents' employees to "organize." Stein then told the girls
that he was "being put up against the wall" and that if the girls did not
comply with the contract he would be sued for "breach of • contract. Bascetta
replied, "Harry, that is' your own hard luck." After some argument between
Bascetta and Margolis, Bascetta told Margolis that the girls would go down
to Local 65 and report that the respondents were going to be sued for breach
,of contract by Local 413 and to "see what-Local 65 would have to say about
,that." All of the employees, except Goldie Sugarman, secretary and book-
keeper of the respondents, went to the headquarters of Local 65.17
Daniel Eile, a Local 65 organizer, testified that on August 28 a group of
.-about 15 or 17 of respondents' employees came to the headquarters of Local
'65 and he held a meeting with them ; that Angela Bascetta was spokesman
for the employees ; that Bascetta told him that the employees had been 'told
-by Margolis and Stein that if they did not join Local 413 they would be dis-
'charged ; that he and Goldlust immediately gathered about 35 members of
,Local 65 from neighboring plants and, together with the employees, they,
-went to the respondents' plant ; that the reason he took along other members
of Local 65 was because he had previously had some trouble with Margolis
and he was. afraid to go to the plant alone; that upon arriving at the
,respondents' building, approximately half of them went up to, the plant and
the others remained on the ground floor; 18 that he and Goldlust, together with
,a committee of four girls chosen by the employees had a meeting with Stein
,and Lapidus in the office ; 1s that Margolis was not- present ; that Stein asked
ii The names of these employees are Angela Bascetta, Mary Bascetta, Virginia DeJose,
Josephine D'Amato, Rose Guiliano, Tessie Guiliano, Tessie Herling, Carmela Novellino,
Faye Pfeffer, Jennie Sabatino, Josephine -Sabatino, Lee Sabatino, Sylvia Shantzer, Goldie
Starker, Helen Trooper, and Mary Untriff. -
"This finding is based upon the undenied and credible testimony of Goldlust and
employee Angela Bascetta: The cards were received in evidence, and the authenticity
of the sienatures was 'not disputed by the respondents.
17 This finding is based upon. the credible and undenied testimony of Angela Bascetta.
>s The respondents' plant was located on the eighth floor of the building.
15 Angela Bascetta was not present at the meeting because she fainted as soon as she
arrived at the plant. -
HARRY STEIN AND ARTHUR CALDER 14-3
him why `so many people were necessary ; that he then told Stein about his
previous trouble with Margolis and that' he was "not taking any chances."
-File then asked Stein why Margolis was intimidating the employees and tell-
ing them that they had to join Local 413. Stein replied that he had signed
a• contract with Local 413. Eile further told Stein that aLocal 65 represented
a majority of the employees and that he would show him the application
cards. Stein made no request to see the cards. Eile then told him that un-
less, he_ bargained with Local 65, regardless of any contract that he had signed,
he would call a strike in the plant and prove to Stein who really represented
the employees. Stein then said that he did not want any trouble, and he
asked Eile how the matter could be straightened out. Rile told him to get
rid of the contract and negotiate with Local 65., Stein said that he could
not do that because Margolis would sue him. Stein also told Eile that she had
signed the contract with Local 413 because Margolis had threatened to picket
his customers if he did not do so. During the discussion, Eile said that
Local 65 did not wish to cause the respondents any trouble and he wished
to negotiate an agreement with the respondents. Lapidus then asked what
kind of cooperation did Eile want. Eile replied, "Mr. Lapidus, the kind of
cooperation I would want is for the firm to sit down and negotiate a contract
to put the people back to work and to stop Margolis from coming in and
intimidating them." Eile further testified that Stein and Lapidus seemed
,willing to discuss the matter with him. At that point in the conference,
they left the office and went into the factory room and gathered around a
table. Those present were Stein and Lapidus, representing the respondents,
and Eile, Goldlust, and the three members of the employees' committee' rep-
resenting. Local 65. Both Stein and Lapidus stated that if the respondents
signed a contract with Local 65, the respondents would be sued for breach of
contract by Margolis, therefore they could not recognize Local 65 as the sole
bargaining representative of the employees ' However, Stein agreed that the
status quo would be maintained in the plant and there would be no lay-offs
or discharges without first consulting Local 65; and that they would imme-
diately contact the New York State Labor Board and endeavor to have the
.contract with Local 413 cancelled, and have an election in the plant to de-
termine the bargaining agent. They adjourned the meeting and proceeded to
the offices of the New York State Labor Board.
Before reaching the office of the New York State Labor Board, they were
joined by Morris Pfeffer and David Livingston, organizer and director of Local
65, and another conference was held in a restaurant. At that meeting, Stein
agreed not to compel the employees to join Local 413, and promised that they
would be treated as if no contract existed Stein further agreed that if any
lay-offs became necessary, it would be done according to seniority.20 Margolis
was not present at that conference. Upon arriving -at the New' York State
Labor Board, they were advised by Examiner Alex Luxenburg to refer the
matter to the National Labor Relations Board, as the respondents were engaged
in interstate commerce. Thereafter Local 65 filed charges against the respond-
ents with the Board, and so far as the record discloses no further negotiations
took place. The respondent Stein apparently taking the position that he would
await the action of the Board on the validity of the Local 413 contract.
While the respondents may have been acting in good faith in coercing their
employees to join Local 413 after the closed-shop contract, hereinafter found
to be illegal, had been executed, in the belief that if they did not do so Margolis
would sue them for breach of contract, and exert other pressure on them inimi-
m This finding is based upon the credible and undenied testimony of Morris Pfeffer.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cal to their business, still an employer may not, in the'absence of a valid existing
contract requiring membership in a labor organization as a condition of em-
ployment, compel his employees to join such an organization," and such acts
constitute a violation of the Act. -
The undersigned finds that by the statements and activities of Stein, set forth
above, in threatening the respondents' employees with discharge unless they
joined Local 413, the respondents interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of the Act.
B. The refusal to bargain collectively with Local 65
The amended complaint alleges that the respondents, from about August 28,
1941, to the date of the issuance of the amended complaint, have 'refused to
bargain with Local 65 as the representative of their employees within an
appropriate unit.,
1. The appropriate unit
Local 65 admits to membership all production workers employed bythe respond-
ents with the exception of supervisory and clerical employees and salesmen.
The amended complaint alleges, and the respondents admit,'that these employees
constitute a unit appropriate-for the purposes of collective bargaining.
The undersigned finds that all production employees of the respondents, ex-
cluding supervisory and clerical employees and salesmen, have at all times
material herein constituted, and that such employees of the'respondent Stein,
now constitute, a unit appropriate for the purposes of collective bargaining,
and that said unit insures to employees of the respondent Stein the full benefit
of their right to self-organization, and to collective bargaining, and otherwise
effectuates the policies of the Act.
2. The claim of majority by Local 413
There was received in evidence 15 application cards for membership in Local
413, signed by employees of the respondents, designating Local 413 as their
exclusive bargaining agent. These cards disclose the following data:
Name
Date alleged
to have been
Whether date
written or
signed stamped
Sylvia Markowitz-------------------------------------------------------- June 12,1941 Stamped.
John Loos-------------------------------------------------------------- - July 25,1941 Written.
Carmela Novellmo------------------------------------------------------ July 29,1941 Do.
Shirley Kamen---------------------------------------------------------- Aug 11.1941 Stamped.
Mary Untnff------------------------------------------------------------- Aug. 11,1941 Do.
Sylvia Shantzer---------------------------------------------------------- Aug. 11, 1941 Do.
Charles Cannucio-------------------------------------------------------- Aug. 12,1941 Do.
Tessie IIerlmg------------------------------------------------------------ Aug 12, 1941 Do.
Louis Kaplan-------- -------------------------------------------------- Aug. 12,1941 Do.
Millie DeJose (forelady)-------------------------------------------------- Aug. 13,1941 Written.
Virginia DeJose--------------------------------------------------------- Aug. 14,1941 Stamped:
Amando Fernandez------------------------------------------------------ Aug 14,1941 Do
Max Pfeffer-------------------------------------------------------------- Aug. 14, 1941 Do.
Faye Pfeffer--------------------------------------------------`----------- Aug. 19,1941 Do.
Jack Stem---------------------------------------------------------------- Aug. 19, 1941 Do.
21 National Labor Relations Board v. Electric Vacuum Cleaner Co., 315 U S. 685, decided
March 30, 1942, rev'g 120 F. (2d) 611 (C. C. A. 6), setting aside 18 N L. R. B. 591.
HARRY STEIN AND ARTHUR CALDER 145
It will be noted that all the cards are dated prior to August 22, 1941, the date
on which the closed-shop contract was signed. Margolis testified that all of
the cards were signed in his presence, and on the dates which they bear, and
that some were signed in the office of Local 413 and some were signed on the
street; that the 12 cards which show that the dates were stamped, were dated
by him With a rubber stamp after the cards had been signed, but it was done
on the same date that the cards were signed.
During the course of the hearing, counsel for the Board subpoenaed the follow-
ing employees to testify at the hearing, who were alleged to have joined Local
413 prior to the execution of the closed-shop contract on, August 22, 1941; Max
Pfeffer, Faye Pfeffer, Tessie Herling, Virginia DeJose, Carmela Novellino, and
Sylvia Markowitz. Only the first three complied with the subpoenas and testified.
Counsel for the Board stated that he intended to prove by these witnesses that
they joined Local 413 subsequent to the execution of the closed-shop contract on
August 22, 1941, and that they were not members of Local 413 when the con-
tract was signed. It is significant, as will appear below, that all of the cards
except three were dated with a stamp. -
Employee Max Pfeffer, a son-in-law of Stein, testified that after the closed-
shop contract of August 22, 1941, had been signed, Stein told the employees
that he hoped all of them would join Local 413, and that probably within a week
after that he signed an application card for membership in Local 413. The
application card of Max Pfeffer, introduced in evidence, bears the date of
August 14, 1941, which is eight days prior to the signing of the closed-shop
contract. It will be noted that the date "August 14, 1941" was stamped on
Pfeffer's application card.
Employee Faye Pfeffer, a sister of Max Pfeffer and a sister-in-law of Stein,
testified that she joined Local 65 on August 27, 1941; that at the request of Stein,
she signed an application card for membership in Local 413 about a week after
she joined Local 65. She also testified, "I went with a group of girls to the
C. I. O. office and signed a card, but later I realized I 'would rather be in the
A. F. of L., because it is a Sample Card Union, so after I signed with the
C. I. O. I went and joined the A. F. of L." She joined Local 65 on August 27,
1941. Her application card for membership in Local 413 bears the date of
August 19, 1941, eight days before she joined Local 65. The date was stamped
on her card.
Tessie Herling (now Mrs. Lessie Cantor) testified that she joined, Local 413
after she had joined Local 65. The record shows` that she joined Local 65 on
August 27, 1941. Her application card for, membership in Local 413 is dated
August 12, 1941, and the date is stamped on the card. Herling testified, "and
I went down with a group of other girls to the CIO office and signed. Later
I decided to change to the A. F. of L." She further testified that she joined
Local 413 at the request of Stein. The record is clear that Stein' made' no
request of the employees to join Local 413 until after the closed-shop contract
had been signed.
The above testimony of Max Pfeffer, Faye Pfeffer, and Tessie Herling con-
tradicts the testimony of Margolis that these,employees joined Local 413 prior
to the execution of the closed-shop contract on August 22, 1941. Margolis testi-
fied that Max Pfeffer joined Local 413 on August 14, 1941, Faye Pfeffer joined
on August 19, 1941, and Tessie Herling joined on August 12, 1941, and that he,
Margolis; .stamped those dates on their application cards on the dates they were
signed. The undersigned credits the testimony' of these three witnesses, and
discredits, the testimony of Margolis. The undersigned further finds that the
testimony of Margolis in respect to the dates on which these three employees
504086-43-vol 46-10
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joined Local 413 is wholly unworthy of belief . The undersigned further finds
that at least the three application cards for membership in Local 413 which
were signed by Max Pfeffer, Faye Pfeffer , and Tessie Herling and which were
dated with a stamp , were post-dated by Margolis for the purpose of endeavoring
to prove that Local 413 represented a majority of the respondents ' employees
prior to the execution of the closed -shop contract on August 22, 1941. The
undersigned further finds that these three employees joined Local 413 subse-
,quent to August 221 1941, and therefore they were not members of Local 413
at the time the closed shop contract was executed.
At the time the contract was signed , there were 25 employees employed in
the plant , including Mildred DeJose , the forelady , and Goldie Sugarman, the
office secretary , which left 23 employees within the appropriate unit. The record
contains 15 membership cards in Local 413, one of which is signed by Mildred
(Millie ) DeJose, the forelady , and three of which were signed by Max Pfeffer,
Faye Pfeffer , and Tessie Herling, respectively, who testified that they, did
not join Local 413 until some time after the contract was signed . Deducting
these 4 from the 15 membership cards in Local 413 which were submitted in
evidence , there remains only 11 employee members, which was not a majority
at the time the contract was signed The above testimony of Max Pfeffer, Faye t
Pfeffer and Tessie Herling casts serious doubt as to whether the other member-
ship cards which were dated with a rubber stamp were actually signed on or
before August 22, 1941.
The undersigned finds from the foregoing , that on August 22 , 1941, Local
413 did not represent a majority of the respondents' employees , within the
appropriate unit ; and that the closed-shop contract executed on August 22, 1941,
between ,the respondents and Local 413, which required membership in Local 413
as a condition of employment , did not meet the requirements of Section 8 (3)
of the Act and therefore is illegal 22. ,
3. Representation by Local 65 of a majority in the appropriate unit
On August 27, 1941, the respondents had in their employ 23 employees within
the aforesaid appropriate unit.-3 As related above, on that date, 16 of these
employees designated Local 65 as their representative for the purposes of col-
lective bargaining The record discloses that some of the employees joined
Local 413 after they had joined Local 65; however; this defection of affiliation
was caused by the respondents' unfair labor practice in coercing the employees
to join Local 413 pursuant to the provisions of the illegal contract. The Board
zz Section 8 (3) of the National Labor Relations Act provides :
That nothing in this Act, or in the National Industrial Recovery Act, as amended
from time to time, or in any code or agreement approved or prescribed thereunder,
or in any other statute of the United States, shall preclude an employer from making,
an agreement with a labor oiganization (not established, maintained, or assisted by
any action defined in this Act as an unfair labor practice) to require as a condition
of employment membership therein, if such labor organization is the representative
of the employees as provided in Section 9 (a), in the appropriate collective bar-
gaining unit covered by such agreement when made.
Section 9 (a) of the Act provides that:
Representatives designated or selected for the purposes of collective bargaining
by the majority of the employees in a unit appropriate for such purposes , shall be
the exclusive reps esentatives of all the employees in such unit for the .purposes
of collective bargaining in respect to rates of pay, wages , hours of employment, or
other conditions of employment. *
23 This finding is based upon the respondents ' pay rolls , which were received in evidence.
HARRY STEIN AND ARTHUR CALDER 147
has consistently found that such defection does not affect the continuing majority
-of the union.
- The undersigned finds that on and at all times after August 27, 1941, Local-65
was and now is the duly, designated representative of a majority of the em-
ployees in the aforesaid appropriate unit, and that, by virtue of Section 9 (a)
of the Act, Local 65 at all such times was and now is the exclusive representa-
tive of all the employees in such unit for the purposes of collective bargaining
An respect to rates of pay, wages, hours of employment, or other conditions of
-employment.
4 Conclusions concerning the refusal to bargain with Local 65
-and the execution of the contract with Local 413
As related above, the respondents refused to bargain with Local 65 because
,of existing contractual relations with Local 413, and the fear of being sued by
.Margolis for breach of contract, and also the fear of economic pressure by
Margolis. Since the closed-shop contract was made with a labor organization
which did not represent a majority of the employees in the appropriate unit,
the respondents cannot rely upon the existence of their contract with Local 413
to excuse their refusal to bargain with Local 65.x'
The further contention that the respondents refused to bargain with Local 65
,because of the fear of economic pressure and suit for breach of contract by
.Local 413, is of.no avail, as the fear of such action does not clothe the respond-
ents with immunity to violate the Act.26
The undersigned finds that the respondents, on August 28, 1941, and at all
times thereafter up to April 1, 1942, have refused to bargain collectively with
-Local 65, as the exclusive representative of their employees and that at all
times since April 1, 1942, the respondent Stein has refused to bargain collectively
with Local 65 as the representative of his employees, in an appropriate • unit in
respect to rates of pay, wages, hours of employment, or other conditions of
employment, and by such refusals, interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of the Act.
C. The alleged discriminatory lay-offs
The amended complaint alleges in substance that the respondents laid off
.Angela Bascetta, a mounter, on August 28, 1941, and nine other mounters 26 on
December 4, 1941, because they refused to join Local 413 or because they joined
and assisted Local 65.
The respondent Stein testified that these employees were laid off on the dates
specified, but contended that it was because of the slow down of work in
the plant. . .
24 Cf. International Association of Machinists v. National Labor Relations Board, 311
U. IS. 72 aff 'g 110 F. ( 2d) 29, (App D. C ), enf'g 8 N. L., R. B 621; National Labor Rela-
tions Board v Electrio Vacuum Cleaner Company, 315 U S. 695, decided March 30, 1942,
rev'g 120 F. (2d) 011 (C C. A. 6), setting aside 18 N L. R B 591.
25National Labor Relations Board v Star Publishing Co, 07 F. ( 2d) 465 ( C. C. A. 9),
" enf'g 4 N L . R. B 498; Wilson and Co Inp v. National Labor Relations Board, 123 F.
(2d) 411 (C. C A. 8), enfg as niod. 26 N. L R. B 273 and 2G N L R. B. 297; McQuay-
_Norris Mfg. Co. v. National Labor Relations Board, 116 P. (2d) 784. (C. C. A. 7), only
21 N. L R. B 709 , cert. den. 313 U. 'S. 565 Cf. National.Labor Relations Board v.
-Hudson Motor Car Co., decided June 3, 1942 ( C. C A 6 ), enf'g 34 N. L R. B., No. 100.
2e Mary Bascetta , Josephine D'Amato, Rose Guiliano , Tessie Guiliano , Jennie Sabatino,
Lee Sabatino , Goldie Starker, and Helen Tropper. -
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Angela Bascetta
Employee Angela Bascetta was first employed on October 31, 1940. She had
no previous experience as a mounter and, during the whole course of her employ-
ment was a part-time worker. Sh'e was laid off in January 1941, rehired in
June 1941, and finally laid off on August 29, 1941. She has not been reinstated.
On August 29 she was given her pay and told by Forelady DeJose that she was
laid off because business was slow and that as soon as business justified it, she
would be reemployed by the respondents. Bascetta met Stein as she was leaving
the plant after her lay-off. Concerning the conversation that then ensued,
Bascetta testified as follows: "He says there is no hard feelings and I says
there wasn't personally. I had nothing against him. I felt he was all right and
he says as soon as he was busy he would send for me and I says I hope so and
'walked to the elevator and walked out."
As found above, Bascetta was the leader in the movement to join Local 65,
and she was also spokesman for the girls in protesting against joining Local
413, after the closed-shop contract had been signed; however, there is not suffi-
cient evidence in the record to justify the conclusion that she was laid off by
the respondents for these reasons. The record shows the respondents had lost
considerable business on account of Margolis' picketing their customers, and there
was very little work in the plant at the time Bascetta was laid off It is there-
fore clear that the, lay-offs at that time were amply justified. Furthermore,
Bascetta was not only a part-time worker, but she had less seniority than any
other mounter. In laying off Bascetta, the 'respondents followed their usual
,seniority rule. Neither Bascetta nor Local 65 made any protest to the respond-
ents on account of her lay-off.
The undersigned finds from the entire record in the case, that Angela Bascetta
was laid off by the respondents on account of lack of work in the plant, and
not for the reasons alleged in the amended complaint. The undersigned further
finds that the respondents by laying off Angela Bascetta on August 29, 1941,
have not engaged in unfair labor practices , within the meaning of Section 8 (3)
of the Act.
2. The nine other employees
The undersigned has found that the respondents' business began to decline
in the latter part of August 1941 , as soon as Margolis began picketing the
respondents ' customers to force the execution of the closed -shop contract and
that the decline continued , which made lay-offs necessary . On August 1, 1941,
there were 26 employees in the plant . On June 4, 1942 , there were only seven
employees in the plant . There were 19 lay-offs during this period. The lay-offs
occurred as follows : August 1; September , 1; October , 1; December , 11; Febru-
ary 1942, 1; March, 1; April , 1; and May, 2." Of the 11 laid off on December
4, 1941, 9 were mounters , 1, a checker and 1, a numberer . Ten of these were
members of Local 65, but only nine are complainants in this case.
The record contains no evidence that these nine complainants or Local 65
made any protest to the respondents on account of the lay-offs. Stein testified
that they were made solely for reasons of economy, as there 'was not sufficient
work in the 'plant to justify retaining them. The undersigned credits this
testimony of Stein.
The record discloses, and the undersigned finds that in addition to the 10
complainants, Sylvia Shantzer, mounter, was laid off on September 11, 1941;
This finding is based upon the credible aiid undenied testnnony of Morns Pfeffer
HARRY STEIN AND ARTHUR CALDER 149
Mary Untripp, mounter, on October 9, 1941; Sylvia ' Markowitz, mounter, on
December 4, 1941; Carmela Novellino, numberer , on December 4, 1941; Charles
Cannucio,' errand boy, on February 19, 1942; Shirley Kamen, temporary' office
-employee, on March 12, 1942; Louis, Kaplan, printer, on April 30, 1942; Virginia
DeJose, ironer, on May 14, 1942; and Mildred,DeJose, forelady, on May 28, 1942.
All of these employees were members of Local 413 at the time of their lay-offs
-and none has been reinstated.
Upon _the basis of the foregoing facts and the entire record , the undersigned
finds that Mary Bascetta , Josephine D'Amato, Rose Guiliano, Tessie Guiliano,
.Jennie Sabatino, Josephine Sabatino, Lee Sabatino, Goldie Starker, and Helen
Tropper were laid off by the respondents on December 4, 1941, on account of
lack of work in the plant, and not for . the reasons alleged in the amended
-complaint.
The undersigned further finds the respondents , by laying off Mary Bascetta,
Josephine D'Amato, Rose Guiliano, Tessie Guiliano , Jennie Sabatino , Josephine
:Sabatino , Lee Sabatino, Goldie Starker and Helen Tropper on December 4,
1941, have not engaged in unfair labor practices within the meaning of Section
.8 (3) of the Act. ,
D. The discriminatory refusal to reinstate
The amended complaint further alleges in substance that the respondents
refused to reinstate Angela Bascetta and the nine other mounters , after they
had been laid off, because they refused to join Local 413 or because they joined
or assisted Local 65.
. The undersigned finds from the record that the seniority in point of service
.among these 10 mounters is as follows : Tessie Guiliano , Rose Guiliano, Lee
Sabatino , Josephine Sabatino, Jennie Sabatino , Josephine D'Amato, Helen-
Tropper , Goldie Starker and Angela Bascetta 28
The record discloses and the undersigned finds that the respondents hired
as mounters , Sylvia Cohen and Sarah Miller, on December 29, 1941, and
Beatrice Goldstein on January 22, 1942 They were hired for temporary work,
and all three of them were laid off on February 18, 1942, and have not been
reemployed . These three employees were hired by the respondents through
Local 413 . They had never worked for the respondents before and had no
,experience as mounters.
Bascetta testified that in the latter part of November 1941, she telephoned
Stein several - times in regard to reinstatement and that on one occasion she
told Stein over the telephone that she had heard he was busy again and had
hired two girls and that she asked Stein if he had. forgotten about her. Ac-
cording to her testimony, Stein told her that he had not forgotten her, but he
had heard that she was working, and that was the reason he had . hired the
-other, girls. She testified that she told him that she had only worked for a few
days and was laid off ; that if Stein were hiring new employees she thought
she should come first ; and that Stein told her that he would send for her.
This testimony of Bascetta was not denied by Stein, and is credited by the
undersigned. - I
Stein testified that he never offered reinstatement to Angela Bascetta, after
she was laid off in August 1941, and there is no evidence in the record that
.the respondents ever offered reinstatement to the nine employees , who were
laid off on December 4, 1941. •
23 This finding is based upon the credible and undenied testimony of Morris Pfeffer.
150 DECISIONS OF NATIONAL LABOR,RELATIONS BOARD'
On- December' 9, 1941, the respondents were sued by Margolis for the sum of'
$15,000 for alleged breach of the closed-shop contract. The suit was settled'
out= of court, two days later, by the payment of $100 to Margolis by the re-
spondents. Stein testified that prior to the suit, the respondents had note
complied with the closed-shop provisions of the'contract, but as a part of the
settlement of the suit-, 'the' respondents agreed to 'comply with the contract
thereafter. Therefore, when three mounters were needed by the respondents'
they were supplied by Local 413, as required by the closed-shop contract, and
no-offer of reinstatement was made to -the mounters who had been laid off.
Having found that the closed-shop contract was illegal, ab 'atitio, the under-'
Signed finds that the' respondents; in thus giving force and effect to' It, dis--
criminated against Angela Bascetta and the other nine mounters 'who were,
laid off on December 4, 1941, by not offering' them reinstatement in accordance'
with the seniority rules practiced by the, respondents.
The undersigned further finds that by thus discriminating, in regard to the
'hire and tenure ,of employment of Angela Bascetta,' Mary Bascetta,' Josephine
D'Amato, Rose Guiliano, Tessie Guiliano, Jennie Sabatino, Josephine Sabatino;
Lee Sabatino, Goldie Starker and Helen Tropper, thereby discouraging mem-
bership in Local 65, and encouraging membership in Local 413, the respondents
'have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (3) of the Act.
IV. THE EFFECT OF' THE UNFAIR LABOR PRACTICES UPON ' COMMERCE '
. The activities of the respondents set forth in Section III -above, occurring in -
connection with the operation of the respondents, 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
Since it, has been found that the respondents have engaged 'in unfair labor-
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act and,
restore as nearly as possible the status quo existing prior to the commission of
the, unfair labor practices.
Since it has been found that the respondents have refused to bargain,col-
lectively with Local 65, as a representative of a, majority of the employees in,
an appropriate unit, it will' be recommended that the respondent Harry Stein.
upon request, bargain collectively with Local 65.n
Since it has been found that the closed-shop contract between the respondents
and Local 413, dated August 22, 1941, is invalid because Local 413 did not rep-,
resent a majority of employees in the appropriate unit at the time the con-
tract was executed, it will be recommended that the respondent Harry Stein
cease and desist from giving effect to the contract dated August 22, 1941, with
Local 413 as well as to any extension, renewal, modification, , or supplement
thereof, and any superseding contract which may now be in force, and to any
contract with a labor organization not certified by the Board. Nothing herein,
however, shall be deemed to require the respondent Harry Stein to vary those
20 The partnership which existed between Harry Stein and Arthur Calder; from July 1,
1941 to April 1, 1942, was dissolved on the latter date. The business was thereafter con-
tinued by Stein. ,
HARRY STEIN AND ARTHUR CALDER 151
wage , hour, seniority and other such , substantive features of his relations with
the employees themselves , if any, which the respondents established in per-
formance of the contract , dated August 22, 1941 , as extended , renewed, modified,
supplemented , or superseded,
Having found that the respondents have not discriminated within the meaning
of Section 8 (3) of the Act , in respect to the lay off of Angela Bascetta on
August 29, 1941, and the' lay-offs of Mary Bascetta, Josephine D'Amato, Rose
Guiliano , Tessie Guiliano , Jennie Sabatino , Josephine Sabatino , Lee Sabatino,
Goldie Starker and Helen Tropper on December 4, 1941, as alleged in the
amended complaint , it will be recommended that the amended complaint be
dismissed in regard to these allegations.
Since it has been found that the respondents, by employing three new em-
ployees, as mounters , through the agency of Local 413, instead of reinstating
three of the mounters who were laid off on December 4, 1941, thereby giving
force and effect to the illegal closed-shop contract, and thereby encouraging
membership in Local 413, and discouraging membership in Local 65, have dis
criminated , within the meaning of the Act, against Angela Bascetta, Mary
Bascetta , Josephine D'Amato, Rose Guiliano, Tessie Guiliano , Jennie Sabatino,
Josephine Sabatino , Lee Sabatino , Goldie Starker and Helen Tropper, it will
therefore be recommended that the respondents make whole three of the
mounters who were laid off on December 4, 1941, having the greatest seniority,'0.
for any loss of pay they may have suffered by reason of their not having been
reinstated , instead of the three new employees who were hired , by payment to
Tessie Guiliano and Rose Guiliano each a sum of money equal to the amount
each would normally . have earned as wages from December 29, 1941, the date
on which Sylvia Cohen and Sarah Miller, two of the new employees, were hired;
to February 18, 1942, the date on which Sylvia Cohen and Sarah Miller were
laid off. Also by payment to Lee Sabatino a sum of money equal to the amount
she would normally have earned as wages from January 22, 1942, the date on,
which Beatrice Goldstein, the other new employee was hired, to February 18,
1942, the date on which Goldstein was laid off, less their net earnings during
said periods.31
It will be further recommended that the respondent Stein place all of the
aforesaid mounters who were laid off, namely, Angela Bascetta, Mary Bascetta,
Josephine D'Amato, Rose Guiliano , Tessie Guiliano , Jennie Sabatino,, Josephine
Sabatino; Lee Sabatino, Goldie Starker, and Helen Tropper upon a preferential
list and offer to them employment in their former or substantially equivalent
positions in the plant as such employment becomes available , according to the
rules of seniority usually obtaining in the plant , before other persons are hired
for such work , and such employees shall remain on the preferential list until
they accept or decline such offer of employment in the plant.
Upon the basis of the foregoing findings of fact and upon the entire record'
in the case the undersigned makes the following:
CONCLUSIONS OF LAW
1. Wholesale and Warehouse Workers Union 65, C. I . 0, affiliated with the
Congress of Industrial Organizations , and Sample Card and Allied Workers
"I These have been found to be Tessie Guiliano, Rose Guiliano and Lee Sabatino.
81 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondents , which would . not have been incurred but for his unlawful
discharge and the consequent necessity for his seeking employment elsewhere . See Matter
of Crossett Lumber , Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union Local 2590, 8 N. L. R. B. 440.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 413, International Brotherhood of Pulp, Sulphite , and Paper Mill Work-
ers, A. F. of L ., affiliated with the American Federation of Labor, are labor
organizations within the meaning of Section 2 ( 5) of the Act.
2. All production employees of the respondents at their plant in New York,
New York, exclusive of supervisory and clerical employees and salesmen, con-
stitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. Wholesale and Warehouse Workers Union 65, C, I . 0, affiliated with the
Congress of Industrial Organizations , was on August 27, 1941, and at all times
thereafter has been, the exclusive representative of all the employees in the
aforesaid unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4. By refusing to bargain collectively with Wholesale and Warehouse Workers
Union 65, C. I. 0., affiliated with the Congress of Industrial Organizations, as
the exclusive 'representative of their employees in the appropriate unit, the,
respondents have engaged in and are engaging in unfair labor practices , within
the meaning of Section 8 (5) of the,Act.
5. By discriminating in regard to the hire and tenure of employment of
Angela Bascetta , Mary Bascetta , Josephine D'Amato, Rose Guiliano , Tessie
Guiliano , Jennie Sabatino, Josephine Sabatino , Lee Sabatino , Goldie Starker
and Helen Tropper, thereby encouraging membership in Sample Card and Allied
Workers Local 413 , International Brotherhood . of Pulp, Sulphite and Paper Mill
Workers, A., F. of L., affiliated with the American Federation of Labor, and dis-
couraging membership in Wholesale and Warehouse Workers Union 65, C. I. 0.,
affiliated with the Congress of Industrial Organizations , the respondents have
engaged in and are engaging in unfair labor practices , within the meaning of
Section 8 (3) of the Act. ,
6. By interfering with, restraining and coercing its employees in the exer
vise of the rights guaranteed in Section 7 of the Act, the respondents have
engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting,
commerce within the meaning of Section 2 (6) and (7)• of the Act.
8. The respondents by laying off Angela Bascetta on August 29, 1941, and
Mary Bascetta , Josephine D'Amato, Rose Guiliano , Tessie Guiliano , Jennie
Sabatino , Josephine Sabatino, Lee Sabatino , Goldie Starker and Helen Tropper,
on December 4, 1941, have not engaged in unfair labor practices within the
meaning of Section 8 ( 3) of the Act.
RECOMMENDATIONS)
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent Harry Stein, an individual, do-.
ing business under the trade name and style of Ace Sample Card Company,
New York, New York, and his officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Wholesale and Warehouse Work-
ers Union 65, C. I. 0., affiliated with the Congress 'of Industrial Organizations,
as the exclusive representative of all production employees of the respondents
at their plant in New York, New York, exclusive of supervisory and clerical
employees and salesmen, with respect"to rates of pay, wages, hours of em-
ployment, and other conditions of employment;
(b) Discouraging membership in Wholesale and Warehouse Workers Union
'65, C. I. 0., affiliated with the Congress of Industrial Organizations, or in any
0
HARRY 'STEIN AND ARTHUR CALDER 153
other labor organization of-his employees or encouraging membership in Sample
Card and "Allied Workers Local 413 , International Brotherhood of Pulp, Sul-.
phite and Paper Mill Workers , A. F. of L., affiliated with American Federation
of Labor, or in any other labor organization of' his employees by refusing to
reinstate any of his employees , or by discriminating in any other manner in
regard to their hire and tenure of employment or any term or condition of
their employment ;
(c) Giving effect to the contract dated August 22, 1941 , with Sample Card
and Allied Workers Local 413, International Brotherhood of. Pulp , Sulphite,
and Paper Mill Workers, A . F. of L., affiliated with the American Federation
of Labor, and to any extension , renewal, modification , or supplement thereto,
and any superseding contract which may now be in force , and to any contract
with a labor organization not certified by the Board ;
(d) In any other manner interfering with, restraining , or coercing their
employees in the exercise of the right to self-organization , to form, join,, or
assist labor organizations , to bargain collectively through representatives; of
their own choosing and to engage in concerted activities for the purposes of
collective bargaining , or other mutual aid, or protection , as guaranteed in Sec-
tion 7 of the National Labor Relations Act ; -
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act : -
(a) Upon request, bargain collectively with Wholesale and Warehouse Work-
ers Union 65, C. I . 0., affiliated- with the Congress of Industrial Organizations
as the exclusive representative of all production employees of the respondent
Stein at his' plant in New York, New York , exclusive of supervisory and clerical
employees„ and salesmen, with respect to rates of pay, wages , hours of employ-
ment - and other conditions of employment ;
. (b) Place upon a preferential list the following named employees : Angela
Bascetta , Mary Bascetta , Josephine D'Amato, Rose Guiliano , Tessie Guiliano,
Jennie Sabatino , Josephine Sabatino , Lee Sabatino , Goldie Starker and Helen'
Tropper and offer to them employment as it becomes available in the manner
set forth in the Section entitled "The remedy" above ;
(c) Post immediately in conspicuous places in his plant at New York, New
York, and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to his employees stating: ( 1) that the respondent
Harry Stein will not engage in the conduct from which it is recommended that
he cease and desist in paragraph 1 (a), (b), (c) and (d ) of these recommenda-
tions; and ( 2) that-the respondent Harry Stein will take the affirmative action-
set out in paragraph 2 (a) of these recommendations;
(d) Notify the Regional Director for the Second Region in writing within'
twenty ( 20) days from the date of the receipt of'this Intermediate Report what
steps the respondent Harry Stein has taken to comply herewith ; ,
It is further recommended that unless on or before twenty ( 20) days from
the receipt of this Intermediate Report the respondent Harry Stein notifies said
Regional Director in writing that he will comply with the foregoing recommenda-
tions the National Labor Relations Board issue an order requiring the respond-
ent Harry Stein to take the action aforesaid.
Upon the basis of the above findings of fact and conclusions of law, the,
undersigned recommends that the respondents Harry Stein and Arthur Calder,
their officers, agents, successors and assigns , shall :
1. Take the following 'affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Make whole Tessie Guiliano , Rose Guiliano and Lee Sabatino for any loss
of pay they have suffered by reason of the respondents' discrimination against
r
154 DECISIONS OF NATIONAL ' LABOR - RELATIONS BOARD
them by payment to Tessie Guiliano and Rose Guiliano each a sum of money
equal. to the amount each would normally have earned as wages from December
29, 1941, to February 18, 1942, and by payment to Lee Sabatino a sum of money
equal to the amount she would normally have earned as wages from January 22,
1942, to February -18, 1942, less their net earnings ^ during such periods.
(b) Notify' the. Regional Director for the Second Region in writing within
twenty (20) days from the date of the-receipt of this Intermediate Report what
steps the respondents (Harry Stein and Arthur Calder) have taken to comply
herewith.
It is further recommended that the amended complaint in so far as it alleges
that the respondents Harry Stein and Arthur Calder engaged in unfair labor
practices within the meaning of Section 8 (3) of the Act by laying off Angela
Bascetta-, on August 29, 1941, ,and Mary Bascetta, Josephine D'Amato, Rose
Guiliano,' Tessie Guiliano, Jennie Sabatino, Josephine Sabatino, Lee Sabatino,
Goldie Starker and Helen Tropper on December 4, 1941, be dismissed.
It is further recommended that unless on or before twenty (20) days from
the receipt of this Intermediate Report the respondents (Harry Stein and Arthur
Calder) notify said Regional Director in writing that they will comply with
the foregoing recommendations the: National Labor Relations Board issue an
order requiring the respondents (Harry Stein and Arthur Calder) to take the
action aforesaid.
- As provided in Section 33 of Article-II of the Rules and Regulations'of the
National Labor Relations Board, Series 2-as- amended-any party may within
thirty (30) days from the date of the entry of the order transferring the case
to the Board, pursuant to Section 32 of Article II of said Rules and Regulations,
file with the Board, Shoreham Building, Washington, D. C., an original and four
copies of a statement in writing setting'forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, -request
therefor must be made in'writing to the Board within twenty (20) days after
the date of the-order transferring the case to the Board.
W. P. WEBB,
Trial Ea,aminer.
Dated September 10, 1942.
32 See footnote 31, supra.