Central Paint & Varnish Works

National Labor Relations Board - Board Decisions

Sep 10, 1942

43 N.L.R.B. 1193 (N.L.R.B. 1942)

In the Matter of Louis F. CASSOFF, ALSO KNOWN As L. FRANCIS CASE,
DOING BUSINESS UNDER THE NAME AND STYLE OF CENTRAL PAINT L
VARNISH WORKS and LOCAL 12129, PAINT, VARNISH & ALLIED PROD-
UCTS DIVISION, UNITED MINE WORKERS OF AMERICA, DISTRICT 50
and PAINT, VARNISH, SHELLAC & LACQUER WORKERS UNION, LOCAL
20728, AMERICAN FEDERATION OF LABOR, PARTY TO THE CONTRACT
Case No. C40136.-Decided September 10, 194.
Jurisdiction : paint manufacturing industry
Unfair Labor Practices
Interte ence, Restraunt, and Coci cion: organizing collective bargaining com-
mittee; execution of individual (Balleisen) contracts for purpose of thwart-
ing legitimate self-organization; questioning employees regarding their union
affiliation : urging employees to relinquish membership in charging union and
rebuking them for such membership;, recruiting members for and otherwise
assisting rival organization and permitting such assisted organization in
bringing outsiders to the plant for purpose of intimidating the employees
Discrimination: discharges pursuant to illegal closed-shop contract with
assisted organization.
iP
Collective Barqaining: majority established by application cards; majority not
affected by duplicate membership cards in rival assisted organization-refusal
to bargain collectively by: aiding and assisting rival organization with which
it executed an illegal closed-shop contract in order to avoid bargaining With
statutory representative.
Remedial Orders : illegal individual contracts abrogated when no showing was
made that these contracts had been superseded by the closed-shop contract
with the assisted organization ; employer ordered to withhold recognition
,from assisted organization till such time as it might be certified by the
Board; closed-shop contract with assisted organization abrogated; employees
reimbursed for dues checked off ii behalf of assisted organization; employer
ordered to bargain with - charging union' and to reinstate and award back
pay to employees discrimninately discharged.
Unit Appropriate for Collective Bargaining : production, maintenance, shipping, _
and laboratory employees including the watchmen, but excluding office, sales,
and clerical employees, truck drivers, and supervisory employees
Mr. Christopher W. Hoey, for the Board.
Rubinton and Coleman, by Mr. Lester M. Rosenbloom, of New
York City, for the respondent. •
Mr. Harry Friedson, of New York City, for District 50.
Buitenkant and Cohen, by Cllr. Jacques Buitenkant, of New York
City, for Local 20728. -
Mary M. Persinger, of counsel to the Board.
43 N. L R. B., No. 191.
1193
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF TIIE CASE
Upon charges and amended charges duly filed by Local 12129,
Paint, Varnish & Allied Products Division, United Mine Workers
of America, District 50, herein, called District 50, the National Labor
Relations Board, herein. called* the Board, by the Regional Director
for the Second Region (New York City), issued its complaint dated
November 12, 1941, against Louis F. Cassoff, also known as L. Fran-
cis Case, doing business. under the name and style of Central Paint
& Varnish-Works, herein called- the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section -S (1), (3),
and (^) and .Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein, called the Act. Copies of the complaint
and notice of hearing, and subsequent notices of postponement of
the hearing, and a "Notice of Motion to Amend" the complaint, were
duly served upon, the resppnclent, District 50, and Paint, Varnish,
Shellac & Lacquer Workers Union, Local 20728, American Federa-
tion of Labor, herein called Local 20728.
With respect to the unfair labor practices the complaint, - as
amended at the hearing, alleged in substance (1) that in June 1937,
the respondent caused his employees to 'sign individual contracts as
a condition of employment, and that such contracts are' invalid and
violative of the Act;' (2) that on or about August 5, 1941, and at
all tunes thereafter, the respondent refused to bargain with District
50 as the exclusive representative of his employees in,an appropriate
unit ; (3) that since about August 1, 1941, the respondent has urged,
persuaded; and warned his employees to join Local 20728, has re-
cruited and assisted in the recruiting of members for Local 20728,
has permitted the use of his property and working time in behalf
of said organization, has threatened his employees with discharge
or other reprisals if they did not become members of said local, and,
has required as a condition of employment,, membership in Local
20728; (4) that on or about August. 5, 1941, the respondent entered
into a closed-shop contract with Local 20728 for a term of approxi-
mately 2 years, which contract is invalid because said local did not
'This allegation was added to the complaint by motion to amend made at the hearing,
a second amended charge covering the matter having been filed on December 31, 1941 The
motion to amend was granted over the objection of Local 20728, which thereafter( objected
to the introduction of all testimony relating to events in 1937
LOUIS F. CASSOFF 1195
represent an uncoerced majority of the employees in the appropriate
bargaining unit at the time of the execution of the contract; (5) that
on or about August 6., 1941, the ,respondent discharged and locked
out 25 named employees because of their activities in behalf of Dis-
trict 50 or because of their refusal to join Local 20728, and that the
respondent refused to reinstate all said employees except 9 who were
rehired on condition that'they join Local 20728; and (6) that by the
foregoing acts the respondent has interfered with; restrained, and
coerced his employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The respondent filed an answer during the hearing, denying, in
effect, all allegations of unfair labor practices.
Pursuant to,notice, a hearing was held in New York City on vari-
ous dates between January 5 and February 14, 1942, before James
C. Paradise, the Trial Examiner duly designated by the Chief Trial
Examiner. The Board, the respondent, District 50, and Local 20728
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to.examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all par-
ties. At the close of the Board's case, and upon motion by counsel
for the Board; the allegations of the complaint with respect to Ken-
neth Gruschow were dismissed. At this time both the respondent and
Local 20728 moved that the complaint be dismissed in its entirety
for lack, of supporting evidence. These motions were denied. They
were renewed at the close of the entire case, and ruling, having been
reserved on the motions as renewed, they were denied by the Trial
Examiner in his Intermediate Report. At the conclusion of the en-
tire case, counsel for the Board moved that the complaint be amended
to conform to the evidence with respect to minor matters. The mo-
tion was granted, over the objection of Local 20728. During the
course of the hearing, the Trial Examiner made rulings on other
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
On March 9, 1942, the Trial Examiner issued his intermediate Re-
port, copies of which were duly served upon all the parties. He
found that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section*
8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, and recom-
mended that the respondent cease and desist from such unfair labor
practices, including the enforcement of the closed-shop contract with
Local 20728, and that he take certain affirmative action, including the
reinstatement with back pay of 15 named employees and the payment
of back pay to 9 others, designed to effectuate the policies of the
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act: On March 19 and 20, 1942, Local 20728 and the respondent,
respectively, filed exceptions to the Intermediate Report.
On July 21, 1942,, pursuant to notice, a hearing was held before the
Board at Washington, D. C., for the purpose of oral argument. Local
20728 was represented by counsel,who presented oral argument. The
Board has considered the exceptions filed by the, respondent and Local
20728 and,, to the extent that the exceptions are inconsistent with the
findings of fact, conclusions of law, and order, set forth below, finds
them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Louis F. Cassoff , also known as L. Francis Case, doing business under
,the name and style of Central Paint & Varnish Works, is engaged in
the manufacture of paints and varnishes at 69 Prospect Street, Brook-
lyn, New York . The principal materials used by the respondent are
oils, pigments , and resins . During the first 6 months of 1941, the
respondent -purchased raw materials , valued in exces of $100 ,000, of
which 15 percent was shipped to his plant from points outside the
State of New York. During the same period the respondent sold
paints and varnishes, valued in excess of $200,000 , of which 30 percent
was shipped to points outside the State of New York. The respond-
ent concedes that he is engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATIONS INVOLVED
Local 12129, Paint, Varnish & Allied Products Division, United
Mine Workers of America, District 50, is a labor organization affili-
ated with the Congress of Industrial Organizations, which admits to
membership employees of the respondent.
Paint, Varnish, Shellac & Lacquer Workers Union, Local 20728,
is a Federal labor union affiliated with the American Federation of
Labor. It, also,,admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. 'Interference, restraint, and coercion
The first organizational activities among the respondent's employees
appear to have taken place about May 1937, when-Chemical Workers,
'Local Industrial Union No. 33, C. I. 0., the predecessor of District 50,
b'egan' an organizing drive. A few meetings of the employees were
held over a period of about a month, and at a meeting on June 18,
1937, nearly all the respondent's employees joined Local 33. The re-
LOUIS F. CASSOFF 1197
spondent testified that at about this tine' a "group of men" came to
him and told him that "there was some talk going about the plant
between men that they wanted to form a union; ... that they wanted
to get some information about how to go about it," and asked for the
use of an office in the plant for a meeting. He testified further that
these employees asked him for "some Information and some clarifica-
tion regarding the Wagner Act." The respondent then communicated
with L. 1^. Balleisen, Industrial Secretary of the Brooklyn Chamber of
Commerce, who prop idecl him with information and literature.2 The
respondent delivered this material to Maurice Biederman, a salesman
in charge of the respondent's government contracts and the respond-
ent's chief assistant,, and instructed Biederman to speak to the men.
Shortly thereafter the employees were summoned to a meeting in the
plant, where Biederman read them,a statement virtually identical with
the one furnished by Balleisen. Biederman, testified that this meeting
occurred on June 16, 1937, apparently because a copy of the state-
ment which he read, and which was produced at the hearing, was
dated June 16. The Trial Examiner found that Biederman was mis-
taken as to the date because it was incredible that ",the respondent's
employees, including Production Foreman Richard Skolnick and other
supervisors, would have joined the Union on June 18, had the meeting
in the plant been held on June 16. He further found, on the basis of
the testimony of Manual Guadalupe, that the meeting in the plant was
held after June 18, and probably on June 21. • We'agree with these
findings of the Trial Examiner.
The statement read to the employees by Biederman was virtually
identical with statements furnished other employers by Balleisen,
which have been considered by the Board in prior cases.3 After pay-
ing lip service to the Act, the statement contuiued :
We would be pleased to bargain collectively with a committee
of your fellow workers of your own choosing, provided a majority
of our employees so desire. If you elect and choose such a com-
mittee, we would be glad to negotiate and enter into a, written
contract with this committee on your behalf, and with each one
of you individually.
While the company is willing to enter into a writteii contract
with its own employees, it has come to the conclusion that it will
not sign a contract with-any union or have a closed shop in its
plant ....
' The activities of Balleisen have been the subject of comment by the Boaid in a number
of cases See footnote 3, infra
'See Io the Matter of Ant Crayon Company, Inc and its affiliated company , American
Artists Color Works, Inc and United A,tists Supply TVoiks-Terct,le Worke)s organizing
Comm i ttee, C. I. 0., 7 N L I2 B. 102 1 and the cases cited in footnote 4, infra.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Wagner Act does not require the employer to have a closed
shop nor to sign a contract with a union, nor to agree to any terms
the union may ask.
Pursuant to the open suggestion contained in this statement, the
employees proceeded immediately to choose a committee , herein called
the Collective Bargaining Committee, which, according to the respond-
ent, called upon him on the same day. The respondent asked the com-
mittee, which included Plant Superintendent Bellet, what it wanted.
According to the respondent, "they had no notions at all as to what
they wanted. They were just about as dumbfounded with the entire
thing as I was." The respondent thereupon told the committee to
formulate demands; and he himself consulted Balleisen again and
received from him the "generally accepted contract that was being
written." The respondent met with the committee thereafter and pre-
sented this contract to it. The committee in turn gave Cassoff a copy
of its "demands." After some discussion, and with a 'feN'v minor
changes, the contract submitted by the respondent was signed by the
Collective Bar gaining Committee, and thereafter, at the respondent's
suggestion, by almost all the employees individually.
This contract, dated June 22, 1937, states that it is between the em-
ployer, the committee, and "each and every one of the employees of
said employer." By its terms, each of the employees agreed not to
strike "during the entire period of the agreement to July 1, 1942."
The contract further provided that:
Any Employee has the right to join any union of his own
choosing , or to refrain from joining any union. The Employees,
or any of them, shall not and have not the right to demand - a
closed shop or a'signed agreement by the employer with any
union ... The Employer has the absolute and unqualified right to
hire or discharge any employee or employees for any reason, or
for no reason , and regardless of his or their affiliation or non-
affiliation with,any union . . .
It is strictly understood and agreed, however, that the question
as to the propriety of an Employee's discharge is in no event to
be one for arbitration or mediation . . .
It was also provided that the agreement was to be renewed auto-
matically each year unless otherwise, agreed in writing, up to and
including July 1, 1942.
Sometime prior to June 28, 1937, Local 33 filed charges with the
Regional Director for the Second Region, alleging violations by the
respondent of Section 8 (I), (2), and (5) of the Act. Thereafter,
the case was transferred to the New York State Labor Relations Board;
because of some question of jurisdiction over the respondent's opera-
LOUIS F. CASSOFF 1199
tions, and the charges filed with the Board were withdrawn without
prejudice. -
On October 11, 1938, District 50, which had succeeded Local 33, re-
quested the respondent to bargain with it. The respondent replied
by letter on October 15,1938, stating:
However, since under the contract we have with our, employees
there is nothing to arbitrate or discuss until next June, we hereby
notify you that in the event our' employees at that time advise us
in writing that they have designated you as the agency, we would
then bargain with you at that time-Jline, 1939-within the limits
of the contract that we have with our employees.
On December 14, 1938, the' State Board invited the respondent to
attend a conference at its offices regarding the charges filed by Local 33.
The respondent's reply to this invitation was a letter dated December
16, 1938, in which he denied that' he' had fostered a company union
or refused to bargain with Local 33, and stated : -
As a matter of fact, in strict accordance with the National Labor
Relations Act, we entered into extensive bargaining with the desig-
nated representative of our employees . . .
We respectfully 'call your attention to' the fact that the present
existing contracts with our employees contain provisions by which
we are bound and commitments which we are required to fulfill.
We respect and have regard for the-sanctity of our contracts .. .
furthermore, we cannot bring ourselves to believe that your Board
would knowingly advocate the breach and advise the disregard of
valid 'and binding contracts.
Contracts virtually identical with those referred to in the respond-
ent's letter were found by the Board in one of its early cases, to be
"individual anti-Inlion or 'yellow'clog' contracts," discriminatory in
regard to terms and conditions of employment and discouraging to
membership in a. labor organization .4
4 In the Matter of Atlas Bag and Burlap Company, Inc and Milton Rosenbcig, 0iganizer,
et al , 1 N L R B 292, 303 In this case, the Boaid stated
The contract deprives each employee who signs it of the iight to strike until
November 1, 1940, of the right to demand recognition of any union by the employer,
and of the right to question discharges for any reason or no reason regardless of his
affiliation or non-affiliation with any union Despite the lip-service iendeicd by the
terms of the contract to the right of an employee to loin any union of his own choosing,
the agreement deprives each employee subscriber of the fundamental lights inherent
in union affiliation and activity-the right to union recognition, which means the
right to collective bargaining, the sight to concerted activities for mutual aid or
protection, which is guaranteed to' employees in section 7 of the National Labor Rela-
tions Act, and the right to protest against the employer's exercise of his most powerful
antiunion weapon, dischaige for union affiliation or activity It wou'd be hard to
devise it more patently antiunion or "yellow-dog" coitiact, or one mole discouraging
to membership in-a labor organization
See also. In the Matter of Hopwood Rctinning Company, Inc and Monarch Retinning
Company, Ine, et al, 98 F (2d) 97 (C C A 2) enf'g as mod 4 N L R B 922; National
Licorice Co v N L R B, 309 U S 350
1200 'DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
We find, as did the Trial Examiner, that the respondent caused the
organization of the Collective Bargaining Committee-in June 1937,
and the execution of the individual contracts for the purpose of thwart-
ing legitimate self-organization by his employees; and that by holding
the meeting of his employees in June 1937, by the reading of the
BSalleisen statement at said meeting, and by the execution of the indi-
vidual Ualleisen'contracts, the respondent interfered with, restrained,
and coerced his employees in the exercise of,the rights guaranteed in
Section 7 of the Act.
B. The refusal to bargain with - District 50; assistance to and the
closed-shop contract with Local 'YO7.8 , the lockout on August 6,
1914
1. The appropriate unit
The complaint alleges that all production, maintenance, and ship-
ping employees of the respondent, including the watchman, but ex-
cluding office, clerical, sales, laboratory, and supervisory employees,
constitute,, an appropriate bargaining unit. At the hearing, this allega-
tion was further defined when District 50 and counsel for the Board
contended that truck drivers should also be excluded from the unit.
The respondent and Local 20728 contended that all the groups which
District 50 would exclude, except sales employees, properly cone within
the unit. With respect to supervisory employees, Local 20728 con-
ceded only that the respondent himself and Jesse Bellet, the chief
chemist and plant superintendent, should be excluded.'
Office Employees. Office employees are paid weekly salaries, as dis-
tinguished from the production employees who receive hourly rates.
District 50 made no effort to organize them at any time.' That it is
not the practice of Local 20728 to represent office workers is estab-
lished by the fact that its contract with the respondent is the only
one which it has covering such workers, although it has contracts with
numerous other employees.' Although the evidence shows that some
of the office workers have occasion to go into the plant frequently in
5 Bellet is a member of Local 20728, whose clues are checked off by the respondent It was
not until late in the hearing that Local 20728 conceded that he should be excluded from
the unit. The respondent did not seriously contend that Bellet should be included in such
unit.
o Anne spinner , an office employee, testified that she was asked to Joni District 50 by a
fellow employee, Liebowitz. It affirmatively appears from the testimony of George
Gleason, the Distuct 50 organizer, that Lebowitz acted without the knowledge or sanction
of the Union Consequently we attach, as did the Trial. Examiner, no sigmhcance to
'Liebowitz' solicitation of Spinner
7 The record shows that Horbeth organizer for-Local 20728, testified that office employees
are covered by one of Local 20728's contiacts In view of Ito,beths later testimony on
this point,- this testimony appears to have been erroneously transcribed Upon the basis
of 1lorbeth's entire testimony we find, as did the Trial Examiner, that the only contract
of Local 20728 nhrch covers office employees is the,ore with the respondent
Lours F. CASSOFF 1201
the course of their duties, this does not alter the fact that these em
ployees are strictly clerical, and not production workers. From the
entire record we are convinced, as was the Trial Ex'aniiner, that Local
20728 organized the respondent's office employees for the same reason
that Frank Celecia, president of the local, gave for its solicitation of
salesmen in some plants:
By that I mean, if we are organizing a plant and we have a
minority, aud.nt would help us by taking the salesmen, we would -
take them.
We shall exclude the office employees from the appropriate unit.
TIuiclc Drivers . The respondent employs two truck drivers. Until
August 15 , 1941, they customarily spent about 3 hours each day work-
jug in the shipping department . Ordinarily , this would justify their
inclusion in a unit embracing the shipping department . However,
both unions involved here concede jurisdiction over the truck drivers
to the A. F. of L. Teamsters Union. Local 20728 , in soliciting the
truck drivers , informed them that their applications would be trans-
ferred to the Teamsters Union. Thereafter , when Local 20728 had ,
obtained its closed -shop contract with the respondent , having used
the truck drivers ' cards to establish its purported majority, their appli-
cations were transferred to the Teamsters Union which, on August 15,
1941, entered into a contract with the respondent covering the truck
drivers. None of the other contracts 'of Local 20728 includes truck
drivers, except one where , according to Organizer IIorbeth , special cir-
sumstances exist which are not present in the instant cilse.' It is clear,
and we find , as did the Trial Examiner , that truck drivers do not come
within the appropriate unit, and we shall exclude them from such unit.
Laboratory Employees . At they times herein material , there were
four laboratory employees , including Plant Superintendent Bellet.
Although Local 20728 used Bellet 's membership application when it
claimed a majority on August 5, 1941, it now concedes , as stated above,
that he should be excluded from the unit. The laboratory employees
are paid weekly salaries , although , with the exception of Bellet, their
compensation is not greater than that of most of the production
workers . They have all had special training in chemistry , all but
one being graduate chemists . For the most part, these employees work
in a laboratory , separate and apart front the production department,
where they make and test formulas and' samples , make experimental
batches of paint, do research work, and test materials. On occasion,
they mix small amounts of, paint, in quantities from 1 to 5 gallons, when
the mills in the production department are occupied with other orders.
This mixing is done either in the laboratory or in a small mixer out-
side the laboratory . In all cases ,, the resulting mixture or paste is
481039-42-61 43-76
P,
1202 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken back to the laboratory where the preparation of the batches is
completed. Bellet testified that the laboratory employees mix these
small batches abouf once every 3 weeks, but the testimony of Norman
Mechanic indicates that they do so ninth more frequently. In addition,
the laboratory employees often go into the plant to- set mills, test
grinds, and direct the order in which pigments are to be inserted in
the mixtures. This work brings them into, close contact with the pro-
duction workers and is a part of the actual production process. It
would appear, therefore, that the laboratory employees could properly
,be included in the unit. Their inclusion would not violate the organ-*
izing practices of either of the unions, and Local 33 accepted them for
membership in 1937. Upon all the evidence, we conclude, as did the
Trial Examiner, that the laboratory workers, excluding Ballet, belong
,in the appropriate unit.
8uperviso7y Employees. The respondent's plant occupies a 5-story
building., The supervisory staff is headed by the respondent himself,
who does not direct actual production operations in the plant. Next
in rank is Bellet, who is responsible for the operation of the plant in
the absence of the respondent. The actual supervision of production
operations is entrusted to Richard Skolnick, the production foreman.
Skolnick supervises the receiving, grinding; filling and mixing, and
varnish=filling departments, extending over all or part of four of the
five floors of the plant. His salary of $57 per week is exceeded only by
that, of Ballet, and Sally Kimmel, the bookkeeper who is in charge of
the office.' Skolnick, in addition to his supervisory duties, works as
a ehader or color matcher, and frequently works with other employees
in all production departments, when it is necessary to expedite opera-
tions. • According to his own testimony, it is Skolnick's duty to see
that the men work efficiently, to maintain discipline, to lay out the
work to be clone, and to see that production follows the proper sequence.
He orders overtime work upon his own initiative, when he considers it
necessary, and is consulted by Bellet for his opinion as to the com-
petency of employees and in connection with the granting of raises.
When men were laid off during slack periods, Skolnick was consulted as
to whether they should be rehired. From this evidence it is clear
that Skolnick is a supervisory employee with substantial authority
over all the production departments,' despite the ,fact that he, wears
working clothes and does physical work himself.
Skolnick, Bellet, and the respondent testified that only the respondent
has the power to hire and discharge and that Skohnick's authority in
this respect is limited' to reporting incompetency, insubordination, or
other improper conduct to Bellet. As a working foreman, without
8 The respondent admitted that Kimmel was "the closest approximation " he had to a
confidential secretary.
LOUIS F. CASSOFF 1203
power to hire or discharge,-he would be, eligible to membership in
District 50, and was admitted to membership in District 50's prede-
cessor in 1937. Skolnick 'testified, moreover, that he was solicited for
membership in District 50 by Gleason on the evening of August 4, 1941.
Gleason denied that he had so solicited Skolnick. Upon the entire
record, we do iiot credit Skolnick's testimony in this respect.
Despite Skolnick's eligibility for membership in both the organiza-
tions involved here, we believe that his supervisory position and his
close identity,with the management require his exclusion from the unit.
This view is strengthened by, Skolnick's participation, as is set forth
below, in the unfair labor practices committed by the respondent.. We
conclude, as did the Trial Examiner, that Skolnick should be excluded
from the appropriate unit.
Ostroff' and Ames are joint heads of the shipping department;'they
have the same authority there as does Skolnick in the production de-
partments. They are salaried employees whose compensation is sub-
stantially greater than that of their subordinates, although they do not
have the power to lire or discharge, and both assist in the physical
work in their departments. In addition, Ostroff is the brother-in-law
of the respondent and for this reason, according to his own testimony,
was always avoided by other employees-with respect to union matters
until he was solicited to join Local 20728 on August 4.) In accordance
with the usual policy of the Board concerning supervisory employees,
we shall exclude Ostroff and Allies from the uit.
There remains Max Dickstein, a maintenance mechanic and the only
one of three maintenance department employees who is paid a salary.
Although Dickstein, assigns work to the other two maintenance men,
and, according to his testimony, "gets the grief" if anything goes wrong,
the evidence fails to establish that he has supervisory status. He per-
forms his portion of the maintenance work to at least the same extent
as do his two coworkers. He had no authority to discipline, or to
make recomnnendations with respect to them. Accordingly we find, as
did the Trial Examiner, that Dickstein is not a supervisory employee,
and should be included in the unit.
We find that.all production, maintenance, shipping, and laboratory
employees of the respondent, including the watchman, but excluding
office, sales, and clerical employees, truck drivers, and supervisory enn-
ployees, constituted at all times material herein, and that they now
constitute, ,a unit appropriate for the purposes of collective bargaining
with respect to rates of_pay, wages, hours of employment, and other
conditions of employment, and that said unit insures to the employees
of the respondent the full benefit of the right to self-organization and
Samuel Cassoff. lather of the respondent, is a non-supervisory employee in the shipping
department. None of the parties contended that he should be excluded from the unit
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to collective bargaining and otherwise-effectuates the policies of the
Act.
2. Representation by District 50 of a majority in the appropriate unit,,,
and the conflicting claims of Local 20728
On August 5, 1941, the respondent employed 42 persons in the unit
found above to be appropriate. In support of its contention that it
represented a majority of the employees, District 50 produced at the
hearing app] ication cards of 29 employees within such unit, all of which,
were dated between July 29 and August 3, 1941. The testimony of the
signers of the cards establishes that all of them were signed by August
4,1941, with the single exception of that signed by Liebow•itz which,
although dated August 2, was, according to Liebowitz, actually signed
on the morning of August ,5.10 Local 20728 produced 30 membership
applications, all dated August 4 and 5. Of these, 6 bear the names of
employees who had signed District 50 cards.1' Even absent the assist-
ance by the respondent which, as hereinafter found, vitiated the mem-
bership applications of Local 20728, the effect of the 6 duplications,
at most, is to reduce the number of District 50 cards to 23, still leaving
District 50 with a majority of the employees within the appropriate
unit.
We find that on August 4, 1941, and at all times thereafter, District
50 was, and it is, the duly designated representative of a majority of
the respondent's employees in the appropriate unit, and that pursuant-
to Section 9 (a) of the Act, it as and is the exclusive representative
of all the employees in such unit for the purposes of collective bargain-
ing in respect to rates of pay, wages, hours of em ployiment, and other--
conditioiis of employment.
Since the respondent entered into a. closed-shop contract with Local,
20728, on the evening of August 5, it is appropriate that we ascertain
whether that organization could, in any manner, be said to have repre-
sented a majority of the employees in the appropriate unit. Of the 30-
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