Ex-Lax, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1941

34 N.L.R.B. 1095 (N.L.R.B. 1941)

In the Matter of Ex-LAX, INC. and CHEMICAL WORKERS UNION OF
GREATER NEW YORK, FEDERAL LocAL #20523, AMERICAN FEDERATION
OF LABOR
Case No. C-1038.-Decided August 26, 1941
Jurisdiction : laxative manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements ; questioning em-
ployees about union ; threats of discharge for union affiliation or activity.
Company-Domtinated Unions: employer held to have given substantial impetus
to formation of a predecessor-dominated organization by its anti-union con-
duct prior to its formation ; to have further dominated and interfered with
its formation and administration by activities of its supervisory employees
in encouraging and participating in its formation, attending meetings, and
becoming members thereof ; and to have supported it by permitting it the
use of company time and company premises-successor organization found
dominated notwithstanding predecessor's formal dissolution and change
of name where employer did nothing to mark separation between the two
organizations and where the two organizations had similar officers and
constitution.
Discrimination: demotion because of union affiliation and activity, and dis-'
charge because of union affiliation and activity and because of giving testi-
mony under the Act ; charges of discrimination dismissed as to three cases.
Remedial Orders: employer ordered to disestablish successor union and to rein-
state with back pay discriminatorily discharged employee.
Mr. Christopher W. Hoey, for the Board.
Mr. Harold Dublirer and Mr. Herman Edelsberg of New York
City, for the Union.
Edelman & 'Edelman, by Mr. Irvin A. Edelman and Mr. Josluua
Edelman, and Mr. Isidor Enselman of New York City, for the
respondent.
Mr. Harry Cooper, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Chemical Work-
ers Union of Greater New York, Federal Local #20523, American
Federation of Labor, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
,34 N. L. R. B., No. 117.
1095
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Second Region, (New York City), issued its complaint,
dated December 13, 1937, against Ex-Lax, Inc., Brooklyn, New York,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (2), and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint and accompany-
ing notice of hearing, and subsequent notices of postponement and
continuance of hearing, were duly served upon the respondent, the
Union, and Ex-Lax Employees Union, a labor organization alleged
in the complaint to have been dominated by the respondent.
Concerning the unfair labor practices, the complaint alleged, in
substance, (1) that the respondent discharged Joseph Greenstone
and Florence Kamens because they had joined and assisted the
Union, and discharged Philip Katz because it erroneously believed
he had joined and assisted the Union; (2) that the respondent
dominated and interfered with the formation and administration of
a labor organization known as Ex-Lax Workers' Labor Union and
subsequently, as Ex-Lax Employees Union; and (3) that the re-
spondent, by the foregoing and other enumerated acts, interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 ofthe Act. Thereafter the respond-
ent filed its answer, denying the alleged unfair labor practices and
advancing certain affirmative defenses hereinafter noted.
Pursuant to notice, a hearing was held in New York City from
March 29 to April 28, 1938, inclusive, before Howard Myers, the
Trial Examiner duly designated by the Board. The Board, the
Union, and the respondent were represented by counsel and par-
ticipated 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 parties.
During the course of the hearing counsel for the Board moved that
the complaint be amended to allege that the respondent demoted and
transferred Harold Leimsider because he joined and assisted the
Union, and to allege that the respondent dominated and interfered
with the formation and administration of a labor organization known
as Ex-Lax Workers' Labor Union, and subsequently, as Ex-Lax Em-
ployees Union, and as The Union of Ex-Lax Employees. The Trial
Examiner granted these motions over the respondent's objections and
afforded the respondent 5 days within which to answer the complaint
as so amended. Later during the course of the hearing the respond-
ent filed its answer to the new allegations, denying them and advanc-
ing certain contentions hereinafter noted. At the close of the Board's
case, and, again at the close of the hearing counsel for the Board
EIX-LAX, INC. 1097
moved that the pleadings be conformed to the proof in regard to
minor matters such as names and dates. These motions were granted
over the respondent's objection. At the end of the Board's case
and again at the close of the hearing, counsel for the respondent made
several motions to dismiss the complaint. The Trial Examiner denied
these motions; some at the hearing, and the remainder in his Inter-
mediate Report, subsequently issued. Numerous rulings were made
by the Trial Examiner during the course of the hearing on other
motions and on objections to the admission of evidence.
On May 2, 1938, the Union filed a supplemental charge and moved
the Trial Examiner to reopen the record for the purpose of taking
testimony on the basis of said supplemental charge and that the com-
plaint be amended in accordance therewith. On May 11, 1938, the
Trial Examiner issued an order that upon the issuance of a supple-
mental complaint the record would stand open for the taking of fur-
ther evidence on such supplemental complaint. On May 12, 1938,
counsel for the Board issued a "Notice of Motion to Amend Com-
plaint," which was duly served upon the respondent and the Union,
and which notified them that counsel for the Board would move to
amend the complaint in certain specified respects at a hearing to be
held on May 17, 1938.
Pursuant to the aforesaid notice the hearing was reopened on May
17, 1938, at which time counsel for the Board moved that the com-
plaint be amended to allege that the respondent on April 29, 1938,
discharged Harold Leimsider because he joined and assisted the Union
and because he gave testimony under the Act, thereby engaging in
unfair labor practices within the meaning of Section 8 (3) and (4)
of the Act. The Trial Examiner granted this motion over the re-
spondent's objection, and at the close of the hearing on May 17, ad-
journed the hearing for 5 days in order to afford the respondent
opportunity to answer the amendment. Further hearing was held
on May 23, 1938, at which time the respondent filed its answer to
the aforesaid amendment to the complaint, denying the allegations
thereof and advancing certain contentions hereinafter noted. During
the reopened hearing the respondent made several motions to dismiss
the amendment to the complaint. The Trial Examiner denied one
of these motions at the hearing, and the remainder" in his Interme-
diate Report. Various rulings were made by the Trial Examiner
during the course of the reopened hearing and in his Intermediate
Report on other motions and on objections to the admission of evi-
dence made at the reopened hearing.
On August 26, 1938, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent and
the Union. The Trial Examiner found that the respondent had
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and was engaging in unfair labor practices affecting'com-
merce, within the meaning of Section 8 (1), (2), and (3) and Section
2 (6) and (7) of the Act. He recommended that the respondent
cease and desist from its unfair labor practices, that it disestablish
The Union of Ex-Lax Employees, and that it reinstate with back
pay Joseph Greenstone, Philip Katz, Florence Kamens, and Harold
Leimsider.
On November 17, 1938, the respondent filed its exceptions to the
Intermediate Report. Pursuant to notice thereof duly served on all
parties, a hearing was held before the Board in Washington, D. C., on
December 27, 1938, for the purpose of oral argument. Counsel for
the respondent and the Union appeared and participated in the
argument.
On December 30, 1938, the respondent and the Union each filed a
brief. On January 16, 1939, the respondent filed a supplemental
brief.
On January 2, 1940, the Union filed with the Board a motion
requesting that the title of this proceeding be amended in certain
respects. On the same day the respondent filed its objections to the
granting of said motion. On January 26, 1940, the Board issued an
order denying said motion. -
On January 25, 1940, counsel for the Board filed with the Board
a petition requesting that an order be issued reopening the record
herein for the purpose of settlement of said record. On February
10, 1940, the respondent filed its answer to the aforesaid petition
objecting to the granting thereof. On February 20, 1940, the Board
issued an order reopening the record, providing for a further hear-
ing before the Trial Examiner for the purpose of settlement of the
record, and authorizing the Trial Examiner to issue notice of such
further hearing. Copies of this order were duly served on the re-
spondent and the Union. On February 21, 1940, the Trial Examiner
issued a notice of hearing which was duly served upon the parties
Pursuant to said notice a further hearing was held before the
Trial Examiner in New York City, at various times between Febru-
ary 28 and April 18,'1940, inclusive. The Board, the Union, and the
respondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard and to introduce evidence bearing
upon the issues was afforded all parties. During the course of the
hearing the Trial Examiner made numerous rulings in connection
I On February 27, 1940 , the respondent filed "Objections to Order Reopening Record.
Request for Reconsideration and Demand for Hearing and Argument ." These objections are
hereby overruled and the requests denied. On February 27, 1940, the respondent applied to
the Second Circuit Court of Appeals for an order to show cause why the Board's pro-
ceedings should not be stayed , and for a stay thereof. Thereafter the respondent withdrew
said application,
EX-LAX, INC. 1099
with proposed corrections of the transcript, and rulings on other
motions and objections relating to the conduct of the hearing. The
Trial Examiner physically corrected the transcript in accordance with
his rulings. After the close of the hearing counsel for the Board
and for the respondent filed with the Trial Examiner various motions
and objections in regard to corrections of the transcript of the 1940
hearing. On May 28, 1940, the Trial Examiner issued orders ruling
on these -motions and objections. On August 29, 1940, the Trial
Examiner issued his order settling transcript, which was duly served
upon the parties.
The Board has reviewed all the rulings of the Trial Examiner
which were made by him at the three hearings and in his Inter-
mediate Report, as well as in his orders dated May 28, 1940, and
his order settling transcript, dated August 29, 1940, and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed.
On October 8, 1940, the Board notified the parties that in view of the
changed membership of the Board, a request for further oral argu-
ment would be entertained. Pursuant to request therefor by the
respondent and notice thereof duly served upon the parties, hearings
were held before the Board in Washington, D. C., on November 26
and December 10, 1940, for the purpose of oral argument. Counsel
for the Union appeared on November 26, and counsel for the re-
spondent on December 10, 1940, and each offered oral argument. On
December 10, 1940, the respondent filed a supplemental brief.
The Board has fully considered the briefs filed by the parties
and the respondent's exceptions to the Intermediate Report and,
except as the exceptions are consistent with the findings, conclusions,
and order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation having its principal
office and place of business in Brooklyn, New York, where it is
engaged in the manufacture of chocolated laxatives. Twenty per
cent of the raw materials purchased by the respondent originate at
points outside the State of New York. Eighty per cent of the prod-
ucts manufactured by the respondent are sold and shipped to cus-
tomers located outside the State of New York. The respondent em-
ploys approximately 250 clerical and production employees.
The respondent does not deny that it is engaged in commerce within
the meaning of the Act.
1100 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
Chemical Workers Union of Greater New York, Federal Local
#20523, American Federation of Labor, is a labor organization ad-
mitting to membership employees of the respondent.'
Ex-Lax Workers' Labor Union, also known as Ex-Lax Employees
Union, was an unaffiliated labor organization admitting to member-
ship employees of the respondent.
The Union of Ex-Lax Employees is an unaffiliated labor organiza-
tion, admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Domination and support of a labor organization; interference,
restraint, and coercion
1. Sequence of events
Prior to April 1937, certain of the respondent's employees be-
longed to an unaffiliated labor organization known as Chemical
Workers' Union. This organization held no public meetings prior
to April 1, 1937, and did not seek to make its existence known to the
respondent. On April 1, Chemical Workers' Union held its first
public meeting, which was attended by about 70 of the respondent's
employees. They were addressed by an organizer of the American
Federation of Labor and by Harold Leimsider, an employee of the
respondent, and then vice president of the Union. About this time
the organization applied for affiliation with the American Federation
of Labor, and became known as Chemical Workers' Union of Greater
New York, Federal Local #20523, American Federation of Labor.
However, it never received a charter.
During the week of April 5, officers of the respondent questioned
various employees about the Union, and revealed the respondent's
opposition to it. Thus, on April 5, Leimsider was summoned to the
office of Max Kiss, treasurer of the respondent. According to Leim-
sider's testimony Kiss asked him what he knew about a labor organi-
zation among the employees. When Leimsider denied knowledge of
such an organization, Kiss stated "You are not helping me any .. .
you can go back and print it in your labor journal." On April 6,
David Meyers, the respondent's office manager, called Bernard Hore-
lich, an office employee, to his office, and according to Horelich's
2 As hereinafter noted , this labor organization sought affiliation with the American Fed-
eration of Labor but never received a charter . On January 2, 1940, the Union filed a
motion requesting that the title of this proceeding be amended to change the name of the
Union, and annexed an affidavit reciting that the Union had affiliated with the United Mine
Workers of America As noted above , the Board denied this motion.
EX-LAX, INC. 1101
testimony, asked Horelich to give him information about the Union,
and told him "how bad a union would be in Ex-Lax ..."
On April 7, Sidney Matz, vice president of the respondent, ques-
tioned employees Ruth Hodas, Dorothy Birnbaum, and Yetta Shapiro.
According to Hodas' testimony, Matz asked her if she had,heard any-
thing about the Union being formed among the employees and stated
that he had heard that some employees had formed a union, that
he knew it was "just a small union" and that he "wanted to nip it
in the bud." He also inquired of Hodas who was the "instigator"
and who were members of the organization, and reminded her that
she owed a certain loyalty to her employer. When Hodas asked
whether he meant that she was in danger of losing her position, he
said "I am not saying anything about that." During part of her
interview with S. Matz, Israel Matz, president of the respondent,
was present and asked her whether she was going to " a meeting" that
evening or the following evening.3 According to Birnbaum's testi-
mony S. Matz questioned her, in the presence of Kiss, in a fashion
similar to Matz's questioning of Hodas. Accoding to Shapiro's
testimony, S. Matz asked her whether she was satisfied with condi-
tions at the plant and whether any one had ever spoken to her re-
garding "labor troubles."
While the afore-mentioned officers of the respondent admitted ques-
tioning the foregoing employees about whether or not they or other
employees had any grievances,4 they denied having made the state-
ments attributed to them by these employees. These denials are
not convincing. The Trial Examiner found that the respondent
questioned employees as to their knowledge regarding a union at the
plant. Upon the entire record, we find that Kiss, Meyers, I. Matz,
and S. Matz questioned employees Leimsider, Horelich, Shapiro,
Hodas, and Birnbaum, and made the statements attributed to them by
these employees, substantially as testified by them.
On April 7, shortly prior to the close of the working day, the re-
spondent notified its employees to assemble in the lunchroom of the
plant, and they were addressed there by I. Matz. According to the
mutually corroborative testimony of several employees, Matz stated,
in substance, that while he was in favor of unions and had no ob-
jection to the employees forming any union, nevertheless he was
sorely disappointed that some of his employees found it necessary
to form a union affiliated with the American Federation of Labor, and
that he never expected that that would be necessary in his plant. , He
also stated that due to the respondent's interest in the welfare of its
3 A meeting of the Union was scheduled to take place on April 8
4 S. Matz admitted speaking to Hodas and Shapiro on these occasions , but denied having
done so to Birnbaum.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, the respondent had in previous years refused to sell its
business to "Wall Street," but that in view of the formation of the
Union, he could not guarantee that he would continue as head of the
respondent. He ended the meeting by asking for a vote of confidence.
I. Matz, while not specifically denying the foregoing statements at-
tributed to him, denied that he had ever done or said anything to urge,
persuade, or warn any employee to refrain from becoming or remain-
ing A, member of the Union. We find, as did the Trial Examiner, that
he made the foregoing remarks, substantially as testified to by witnesses
for the Board, and that these remarks necessarily discouraged mem-
bership in the Union.
During the morning of April 8, Anne Orman, forelady of the pack-
ing department, called Lillian Sacks, an employee in that department,
to her office and asked her why she had joined the Union, whether she
regretted having hurt the feelings of I. Matz, and whether she would
apologize to him for having joined the Union. Orman also re-
quested Sacks to speak to the other girls in the packing department,
to explain to them that they had done a great injustice to I. Matz
by joining the Union, and to ask them to apologize to I. Matz.
After lunch that day, Sacks conveyed Orman's message to her fellow
employees in the dressing room. Argument and excitement among
the employees ensued. Orman entered the dressing room and
inquired as to the cause thereof, and Sacks informed her that she had
transmitted Orman's request to the girls, and that some of them had
objected to taking the action requested of them. Orman then asked
a number of the employees why they had joined the Union, and why
they had not given the management an opportunity to adjust their
grievances, if any. Some of the girls burst into tears. After some
discussion, Orman asked employee Fay Birnbaum whether she still
wanted a union, and upon receiving an answer in the affirmative,
Orman stated that she should be "horsewhipped." Orman also
warned the girls that if they did not disassociate themselves from the
Union, I Matz would liquidate the respondent's business.
During the afternoon of April 8, Orman, upon being asked by em-
ployee Claire Rothenberg, in the presence of other employees, what
to do about the initiation fee she had paid to the Union, told her to
ignore it and that it meant nothing. On this occasion Orman also
inquired why the employees had to affiliate with some outside organ-
ization to obtain security and stated that they were foolish to do so.
She pointed to employee Florence Kamens, and stated that Kamens
had nothing to lose since she had been laid off during lay-off periods,
but that other employees had no reason to join the Union since they
had received steady employment.
EX-LAX, INC. 1103
A meeting of the Union was scheduled to take place at 6 o'clock on
April 8, and leaflets advertising this meeting were distributed outside
the plant as the employees quit work at 5 o'clock. As they were leaving
the plant at the close of work, Orman urged a number of employees
not to go to that meeting, and warned them that if they did so,
they "would be stepping into an open grave."
At the hearing Orman denied having engaged in the conduct sum-
marized above, and the respondent adduced testimony from a number
of employees in support of her denial. However, the facts as set forth
above concerning Orman's anti-union conduct on April 8, are based
in large part upon the mutually corroborative and convincing testi-
mony of several employees. The Trial Examiner found that Orman
plainly and openly showed her opposition to unions in her conversation
with employees. He also found that Orman advised employees not
to attend the union meeting of April 8. Upon all the evidence, we
find that Forelady Orman on April 8 engaged in the conduct sum-
marized above.
On April 9, Sidney Moskowitz, electrician in the mechanical depart-
ment, accompanied by William Malinke, foreman of that department,
during working hours -toward the end of the day, visited various
departments in the plant and addressed employees assembled therein.
In substance, he expressed opposition to outside unions and advocated
the formation of an inside organization: He circulated copies of the
following petition at these meetings :
We, the employees of Ex-Lax Inc. feeling that we want to
protect our rights as employees; and that we want the right to
bargain collectively with our employers; and feeling that it is
an internal problem of the employees; and it is to our best ad-
vantage for us to handle our own grievances, including wages,
working conditions, etc., in our own way;
We, the undersigned, hereby organize ourselves, enroll and
become members in an organization which we hereby call the
Ex-Lax Workers' Labor Union; and we hereby agree to become
bound by the constitution, by-laws and resolutions of the Ex-Lax
Workers' Labor Union, and agree to pay the annual dues of 50¢
per annum.
Forelady Orman admittedly gave Moskowitz permission to speak
to the employees in the packing department, and told some of the
employees to assemble for his speech. Orman was present during the
meeting and signed one of the petitions. Celia Silverman, assistant
forelady of the packing department, and Nathan Goldberg, foreman
of the moulding department, were also present at this meeting. Sil-
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
verman urged Kamens to sign the petition. According to the mutually
corroborative testimony of several employees who testified in behalf of
the Board, Forelady Orman spoke to some of the assembled employees
at this meeting in, the packing department about the organization
which was being formed, and indicated her approval thereof. Orman
in substance contradicted this testimony, but in view of her expressed
hostility toward the Union and her other activity in connection with
the formation of the new organization, we do not credit her denials in
this respect, and find in accordance with the testimony of the witnesses
for the Board.
In the moulding department, Foreman Goldberg told at least one
employee, Leimsider, to stop his work and come to the front of the
room. There Moskowitz addressed the employees in Goldberg's
presence. Goldberg signed ohe of the petitions circulated there, at the
top thereof.
At the meeting of the employees in the shipping department, Mosko-
witz read a copy of the petition to the employees, and told Frank
Mauro, foreman of that department, to permit the employees to sign it.
Mauro read the petition and said to,the assembled employees, "Here
you are, boys, whoever wants to sign it, go ahead and sign it." Mauro
watched the employees sign and he also signed the petition.
Ex-Lax Workers' Labor Union was thus formed. After its for-
mation, Foremen Goldberg and Mauro, and Forelady Orman, who
were members of the organization, attended one or more meetings
thereof. A number of such meetings were held in the plant in April
and May 1937.
On April 14 a meeting of Ex-Lax Workers' Labor Union was held
in the plant after working hours. Moskowitz presided and opened
the meeting by informing the employees that he had excluded from
the meeting seven employees on the ground that they were members
of the Union. A number of employees objected to such exclusion
and a motion was passed to call in the seven employees, but they had
already left the plant. The meeting then continued with the busi-
ness of nominating officers.
On April 21 another meeting of Ex-Lax Workers' Labor Union
was held in the plant after working hours. At this meeting, part of
a proposed constitution was adopted and the name of the organiza-
tion was changed to Ex-Lax Employees Union. At a meeting of
Ex-Lax Employees Union held sometime in May, officers were elected.
Those elected were : Sidney Moskowitz, president, Max Rothstein,
vice president, Ida Greenberg, treasurer, and Evelyn Baum, secre-
tary.
On May 23 the membership of Ex-Lax Employees Union adopted
a constitution. By the terms of this constitution, eligibility to
EX-LAX, INC. 1105
membership in the organization was limited to employees of the
respondent. The constitution provided for a committee for collective
bargaining, also called a grievance committee, composed of depart-
mental, representatives. Eligibility to membership on the grievance
committee was limited to employees who had at least 1 year's con-
tinuous employment with the respondent. The constitution provided
for annual elections in each department of representatives on the
grievance committee, and for monthly meetings of the grievance
committee.5 However, the constitution made,no provision for gen-
eral membership meetings except an annual-meeting for the purpose
of nominating officers.
While the evidence does not reveal the extent to which the respond-
ent accorded Ex-Lax Employees Union recognition as a bargaining
agency, or dealt with it as such agency, it appears that the grievance
committee of Ex-Lax Employees Union did bring grievances to the
attention of the respondent.
Ex-Lax Employees Union was dormant from May to October 1937.
Moskowitz called a special membership meeting for October 5, away
from the plant. At this meeting Moskowitz advocated dissolution
of Ex-Lax Employees Union on the ground that it was subject to
legal attack, since it had ' permitted supervisory employees to join
and had held meetings on the respondent's premises. A motion to
dissolve the organization was carried by a raising of hands. Mosko-
witz continued to preside, and stated that the employees could join
the Union, but that if they did so "may God have mercy on [your]
silly souls." He also stated that they could form a new inside organ-
ization, or could do without any organization. He then asked for
a vote as to whether a majority of the employees desired a new
inside union. A large majority voted in the affirmative. Moskowitz
then suggested the election of temporary officers, and a motion that
the former officers of Ex-Lax Employees Union be retained as
temporary officers of the new organization was carried by open ballot.
The temporary officers were instructed to draw up a constitution.
A motion providing for an initial fee of $1 for membership in the
new organization was also carried, and Ida Greenberg, former
treasurer of Ex-Lax Employees Union and temporary treasurer
of the new organization, collected the initial fee at this meeting.
On November 24, Moskowitz notified employees by post card that
the next meeting of "our Employees Union" would take place on
5 The record discloses that an election for representative on the grievance committee
from the packing department took place in, the plant.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 29. On November 27, Moskowitz and Rothstein dis-
tributed to employees at the plant entrances copies of a proposed
constitution. The meeting of November 29 was held as scheduled,
and the proposed constitution, with minor changes, was adopted.
The following were, nominated as permanent officers of the organiza-
tion: for president, Sidney Moskowitz and Max Rothstein; for vice
president, Jack Talbert, George Levert, and Max Arnowitz; for
treasurer, Ida Greenberg; for secretary, Evelyn Baum. At this
meeting the membership voted to call the organization The Union
of Ex-Lax Employees.
The constitution of The Union of Ex-Lax Employees is substan-
tially identical with that of Ex-Lax Employees Union, except that it
provides for an executive committee, and for more frequent meetings
of the membership. Instead of a collective bargaining or grievance
committee, a plant council is provided for, which is to serve as a
grievance committee, and which is composed of departmental repre-
sentatives. Eligibility to membership in The Union of Ex-Lax
Employees is limited to employees of the respondent, and eligibility -
to membership on the plant council is limited to members of the
organization in good standing for at least 1 year.
On December 8, a meeting of The Union of Ex-Lax Employees
was held, and the following permanent officers were elected : Sidney
Moskowitz, president; Jack Talbert, vice president; Ida Greenberg,
treasurer; and Evelyn Baum, secretary. These officers, with the
exception of Talbert, occupied the same positions in Ex-Lax
Employees Union.
On December 27, elections of departmental delegates to the plant
council took place. Max Rothstein, former vice president of Ex-Lax
Employees Union, and Max Arnowitz, former representative on the
grievance committee of Ex-Lax Employees Union, were elected to the
plant council. Arnowitz subsequently became chairman of the plant
council.
At the time of the hearing The Union of Ex-Lax Employees had
made no attempt to secure recognition from the respondent, pending
the outcome of the instant case, and no membership meetings were
held between January 1938 and the date of the hearing.
2. Concluding findings
The respondent, by its anti-union conduct prior to the formation
of Ex-Lax Workers' Labor Union, subsequently called Ex-Lax
Employees Union, gave substantial impetus to the formation of that
organization. Supervisory employees encouraged and participated
in its formation. They interfered with its administration by becom-
EX-LAX, INC. 1107
ing members thereof and attending its meetings. The respondent
gave the organization support by permitting it the use of company
time and company premises. It is clear and we find that the re-
spondent has dominated and interfered with the formation and
administration of Ex-Lax Workers' Labor Union and Ex-Lax Em-
ployees Union.
On March 30, 1938, the-day before the beginning of the first hear-
ing herein, the respondent, the Union, and the Board by its Regional
Attorney, entered into a stipulation providing for settlement of the
allegations of the complaint theretofore issued, that the respondent
had dominated and interfered with the formation and administration
of Ex-Lax Workers' Labor Union and Ex-Lax Employees Union.
This stipulation provided that it was subject to approval of the Board
and that the Board might order the respondent to disestablish all
relations with Ex-Lax Workers' Labor Union and Ex-Lax Employees
Union. The stipulation makes no provision for disestablishment of
The Union of Ex-Lax Employees. Indeed, it appears that neither
counsel for the Board nor counsel for the respondent knew of the
formation or existence of The Union of Ex-Lax Employees prior
to the date of the first hearing herein. So far as the record shows,
no representative of the Board had such knowledge. Moreover, the
effect of this stipulation upon the introduction of evidence at the
hearing and the use of such evidence thereafter by the Trial Exam-
iner or the Board was the subject of constant controversy among the
parties at the hearing. During the course of • the hearing the Trial
Examiner stated that if the Board decided that the stipulation was
binding, then evidence adduced at the hearing in support of the Sec-
tion 8 (2) allegations of the complaint,e was being introduced only
for the purpose of establishing alleged violations of Section 8 (1)
and (3) of the Act. Under all the circumstances, we do not approve
the stipulation. Upon the entire record, we are of the opinion that
in order to effectuate the policies of the Act we must make the ulti-
mate findings of fact required by the evidence and enter the orders
appropriate thereto.
Neither the formal dissolution of Ex-Lax Employees Union, nor
its change of name to the Union of Ex-Lax Employees can conceal
the continuity between these organizations. At no time did the
respondent inform its employees that it would no longer dominate
and support a labor organization of its employees. The respondent
did "nothing to mark the separation between the two [organizations]
and publicly to deprive the successor of the advantage of its ap-
At the time the Trial Examiner made this statement, the complaint had been amended
to allege that the respondent had dominated The Union of Ex -Lax Employees.
1 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parently continued favor." 7 The two organizations had in common
the essential characteristic of being limited to employees of the
respondent, as distinguished from the Union, against whose proposed
national affiliation the respondent had shown its hostility. The
persons who formed and administered the affairs of Ex-Lax Em-
ployees Union, with one exception, also formed and administered
the affairs of The Union of Ex-Lax Employees. We agree with the
finding of the Trial Examiner that The Union of Ex-Lax Employees
is nothing more than Ex-Lax Employees Union under a different
name. Under the circumstances disclosed by this record, we find
that The Union' of Ex-Lax Employees is the successor to Ex-Lax
Employees Union; that the persons identified with Ex-Lax
Employees Union, who formed and administered the affairs of The
Union of Ex-Lax Employees, in so doing, acted in behalf of and
represented the respondent and that the respondent-through these
persons, its domination of Ex-Lax Employees Union, its failure to
inform its employees that it would no longer dominate a labor
organization of its employees, and its failure publicly to mark any
7 Westinghouse Electric & Mfg. Go v. National Labor Relations Board, 112 F. (2d)
657 (C C A 2), enforcing as modified 18 N L R B 300, affirmed (per curiam) 312 U S
660 In its original answer to the original complaint herein , the respondent alleged as an
affirmative defense that prior to the issuance of such complaint , and in and about August
1937 , the matters set forth in the complaint were settled between a representative of the
Board and a representative of the respondent ; that by the terms of such settlement the
respondent was to post on its bulletin board a notice stating that the respondent intended
to abide by all provisions -of the Act, that its employees had a right to join any labor
organization of their own choice, and that the respondent would not discriminate against
any employee because of union membership ; thaf the Board would dismiss all charges
theretofore filed against the respondent by the Union; and that, although the respondent
was ready to carry out the terms of the settlement , the Board notified the respondent that
the Board would not perform its agreement Upon motion of counsel for the Board, these
allegations in the answer were stricken by the Trial Examiner and he prohibited the intro-
duction of any evidence in support thereof We have already affirmed these rulings. In
the first place , it is to be noted that the respondent does not claim to have complied with
the alleged settlement agreement . Secondly , the alleged agreement makes no piovision for
disestablishment of Ex-Lax Employees Union , a labor organization clearly dominated by
the respondent , which was in existence at the time the alleged agreement was entered into
Finally, after the date of the alleged agreement, the respondent , as found below , discrimi-
natorily discharged Harold Lemisider, the president of the Union. Under all these cir-
cumstances , we would not give effect to the alleged settlement agreement , had it been
entered into . Cf N. L. R. B. v. H auk it Buck Co., June 13, 1941 (C. C. A. 5), 8 L. R. R
604, enf'g 25 N L R. B. 837. Matter of The Duffy Silk Company and Silk Thowsters
Union, Local 81, Tex=tile Workers Union of America, 19 N. L R B 37, 47 See also,
Matter of J. Dienitz, Doing Business Under The Firm Name And Style Of Gloray Knitting
Mills and Joint Council of Knit Goods Workers Union, International Ladies Garment
Workers Union, Local #155 , and cases cited therein at footnote 17. Moreover, had the
respondent posted the notice referred to by it in its allegations regarding the settlement
agreement , the respondent would not thereby have effectively marked a separation between
the two organizations since the notice refers to neither of these organizations . Westing-
house Electric Mfg. Co. v. N. L. R B , cited supra.
EX-LAX, INC. 1109
separation between the two organizations-unlawfully sponsored the
initiation and establishment of The Union of Ex-Lax Employees."
We find that the respondent has dominated and interfered with
the formation and administration of Ex-Lax Workers Labor Union,
Ex-Lax Employees Union, and The Union of Ex-Lax Employees,
and has contributed support to them ; that thereby, and by its ques-
tioning of employees regarding the Union and the anti-union re-
marks made in connection therewith by the speech of I. Matz on
April 7, and by the conduct of Forelady Orman on April 8, the
respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
B. Discrimination
Philip Katz. The complaint alleges that the respondent discharged
Katz because it erroneously believed that he joined and assisted the
Union. The respondent contends that Katz was discharged because
he disobeyed the respondent's instructions not to admit any person
to its chemical laboratory except on business.
Katz was employed by the respondent as a chemist in the summer
of 1932. He was discharged on May 21, 1937. He did not join the
Union prior thereto. At the April 14 meeting of Ex-Lax Workers'
Labor Union, Katz was one of those who spoke against exclusion of
seven members of the Union from the meeting. He also stated there
that he was not affiliated with any outside union. While Katz's
conduct at this meeting was fairly prominent, several other em-
ployees, some of whom were affiliated with the Union, also spoke
against the exclusion of the seven members of the Union. Following
this meeting, Katz engaged in conversation with a number of em-
ployees in the plant about unions, and expressed himself in favor
of outside unions. However, he admittedly never engaged in
organizational activity in behalf of the Union.
Katz testified that on April 15, Foreman Nathan Goldberg called
him aside and informed him that his action at the meeting held the
previous day, would do him no good. Goldberg denied this testi-
mony, but upon all the evidence and in view of Goldberg's participa-
8 National Labor Relations Board v Link -Belt Co ., 311 U. S. 584 , rev'g mod . of Board's
order in 110 F. (2d) 506 (C. C. A. 7), and enf 'g Matter of Link-Belt Company and Lodge
1604 of Amalgamated Association of Iron, Steel and Tin Workers of North America,
through the Steel Workers Organizing Committee affiliated with the Committee for Indus-
trial Organization, 12 N. L. It. B 854; International Association of Machinists v. National
Labor Relations Board, 311 U. S. 72, aff 'g 110 F. ( 2d) 29 (App. D. C.), enf'g Matter of
The Serrick Corporation and International Union, United Automobile Workers of America,
Local No. 459, 8 N. L. R B 621; Westinghouse Electric and Manufacturing Company v.
National Labor Relations Board, 312 U. S. 660, aff'g (per curiam ) 112 F ( 2d) 657 (C. C. A.
2), enf'g as mod . Matter of Westinghouse Electric & Manufacturing Company, and United
Electrical Radio & Machine Worker8 of America, Local # 410, 18 N. L. It. B. 300.
451269-42-vol. 34-71
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion in the formation of Ex-Lax Workers' Labor Union, as noted
above, we do not credit his denial. We find that the foregoing
incident occurred substantially as testified by Katz.
Several days prior to Katz's discharge, one Weigert, sales mana-
ger in the respondent's plant, and a friend of Katz, called the latter
to his office and informed him that there were rumors that he was
an organizer for the Union and a member thereof, and that, if these
reports were without foundation, he should see I. Matz and tell
him so. Katz thereupon saw his direct superior, Max Kiss, instead,
and told Kiss that he was not active in behalf of the Union and
was not a member thereof. Kiss told Katz that he knew that Katz
was not a member.
On May 21, the day of his discharge, and for some time prior
thereto, Katz was in charge of the routine analytical work which
was carried on in the outer room of the respondent's chemical labo-
ratory. For more than a year and a half before May 21, Joseph
Greenstone, watchman at the employees' entrance to the plant,
visited the chemical laboratory almost daily, borrowed Katz's New
York Times, and engaged in conversation with Katz and sometimes
with his assitsant, Nathan Levitan. These visits lasted from 2 to
30 or more minutes. While Foremen Nathan Goldberg and Frank
Mauro knew of Greenstone's practice in this regard, neither Kiss
nor S. Matz had such knowledge prior to May 21, nor does it appear
that I. Matz knew of these visits. A week or two prior to his dis-
charge, S. Matz noticed Katz engaged in conversation at the entrance.
to the laboratory, with some person who had no apparent business
there. Matz thereupon instructed Katz that he should not there-
after permit anyone in the laboratory who had no business there.
However, Katz admittedly continued to permit Greenstone's daily
visits.
On May 21, Edward Cole, a cleaner at the plant, complained to
Kiss about Greenstone's habitual absence from his post and his
visits to the laboratory. Thereupon, Kiss, with the participation to
some extent of I. Matz, interviewed a number of employees who
corroborated Cole's complaint,9 and ascertained from Max Hubacher,
who was in charge of research work at the laboratory, occupying the
inner room thereof, that Greenstone had visited the laboratory that
day for about a half hour. Thereafter, Kiss questioned Greenstone,
who admitted that he had visited the laboratory that day and that
he had been doing so for a long time. Kiss then interviewed Katz,
in the presence of S. Matz, and Katz admitted that Greenstone had
visited the laboratory that day. S. Matz reminded Katz of the
O The substance of Cole's complaint , and Kiss' interviews subsequent thereto, are dis-
cussed below in greater detail, in the case of Greenstone.
EX-LAX, INC.
instructions he had previously given Katz regarding admission to
the laboratory.
Later that day, Kiss, S. Matz, and I. Matz decided to discharge
Katz and Greenstone. Kiss then carried out this decision, and indi-
cated to Katz at the time of his discharge that the reason therefor
was that he had disobeyed his instructions by permitting Greenstone
to enter the laboratory.
Shortly after his discharge Katz visited his friend, Sales Manager
Weigert, at the latter's home, and informed him of his discharge and
stated that he never had been a member of the Union. Weigert
replied that he should have taken that matter up personally with
1. Matz.
We are of the opinion that the evidence does not support the alle-
gations of the complaint with respect to Katz. While Katz had
been warned by Foreman Goldberg about his activity in behalf of
the union members on April 14, Goldberg was not his superior and,
in so far as the record shows, did not participate in his discharge,
except for the fact that Goldberg was one of those questioned by
Kiss regarding Greenstone's visits to the laboratory., Weigert like-
wise was not Katz's superior, and had nothing to do with his dis-
charge. His afore-mentioned statement to Katz after his discharge
at most indicates that Weigert thought that Katz's discharge might
have been motivated by a belief on the part of the respondent that
Katz was active in and a member of the Union. In view of the facts
that Katz's activity in behalf of the Union was slight, that prior to
his discharge Kiss informed him that he knew Katz was not affiliated'
with the Union, that Katz admittedly permitted Greenstone to be in
the laboratory after having been instructed not to admit persons
without business there, and the other circumstances noted above, we
find that the evidence does not support the allegations of the com-
plaint that the respondent discharged Philip Katz because it errone-
ously believed he was a member of, and assisted the Union.
We find that the respondent has not discriminated in regard to
the hire or tenure of employment of Philip Katz. We do, however,
find that the respondent, by Foreman Goldberg's statement to Katz
on April-15, as noted above, interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7
of the Act.
Joseph Greenstone. The complaint alleges that the respondent
discharged Greenstone because of his membership in and assistance
to the Union. The respondent contends that he was discharged
because he neglected his duties and interfered with the work of other
employees. Greenstone was employed by the respondent as a watch-
man in 1931. He was stationed at the employees' entrance to the
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant and his duties consisted of issuing passes, taking care of time
cards, checking on persons leaving the plant with packages, and
seeing that no one entered the plant without being announced.
Greenstone joined the Union in December 1936 or January 1937 and
thereafter attended its meetings. He solicited a number of em-
ployees to join the Union. He was assigned by the Union to engage
in such solicitation in the shipping and mechanical departments.
At the hearing, although admitting that he signed the Ex-Lax
Workers' Labor Union petition, Greenstone claimed that he refused
to sign it at the meeting called by Moskowitz in the shipping depart-
ment on April 9. His testimony in this regard is not credible, since
his signature appears second from the top on a copy of the petition
which was circulated at that meeting.
According to the mutually corroborative and convincing testimony
of several witnesses for the respondent,1° the following facts appear.
For more than a year and a half prior to May 21, Greenstone was
in the habit of leaving his post of duty almost every morning when
Cole came to his office to clean there. On these occasions, as noted
above, Greenstone visited the chemical laboratory, borrowed Katz's
New York Times, and engaged in conversation with Katz and Levi-
tan. These visits lasted from 2 to 30 or more minutes. As a result
of Greenstone's absences, Cole was frequently detained at Green-
stone's post after Cole had completed his duties there, and his work
elsewhere was interfered with. Cole often complained to Greenstone
about the latter's conduct and its effect upon Cole's work. On these
occasions Greenstone repelled Cole's complaints with abusive
language. Foreman Mauro, of the shipping department, was aware
of Greenstone's practice of leaving his post, and on one occasion
about a month prior to Greenstone's discharge, Mauro informed him
that he was leaving,the entrance too often and warned him that he
might lose his job • on that account. Cole finally complained to his
superior, Carl Anderson, about Greenstone's conduct, and about 2
or 3 weeks prior to May 21, Anderson and Cole decided that Cole
would clean Greenstone's office before Greenstone arrived there in
the morning. Cole carried out this decision, and Greenstone ex-
pressed his violent disapproval thereof to Cole and Anderson, and
threatened to bring about their discharge. Thereupon, on May 21,
Cole reported his difficulties with Greenstone to Kiss. It also appears
that Greenstone occasionally left, the plant entrance completely
unguarded.
10 These include employees Max Hubacher, Edward Cole, Clifton Gardiner , Octave Brunet,
Murray Goldberg , Frank Mauro , Carl Anderson , Arthur Gilbert, Aaron Greenwald, Frank
Wilensky , Milton Berlinger , and Nathan Goldberg,
Ex-LAX, INC. 1113
At the hearing Greenstone admitted that he visited the laboratory
almost daily, but attempted to minimize the duration of such visits.
The testimony concerning the effect of Greenstone's conduct upon
Cole and his work and the strained relationship between them, is in
large part undenied. Upon cross-examination, in answer to questions
concerning Greenstone's quarrels with Cole and Anderson, and the
cause thereof, Greenstone repeatedly testified "I don't remember."
While Greenstone denied that anyone ever complained to him about
his work or that he ever had any discussion with Mauro about leav-
ing his post, his denials are not convincing. We credit the testimony
of the respondent's witnesses regarding Greenstone's conduct as sum-
marized above, and find in accordance therewith.
While Foremen Mauro and Goldberg were aware of Greenstone's
absences from his post of duty, they did not report him to the man-
agement, because they had no desire to cause Greenstone any diffi-
culties. As noted above, neither Kiss nor S. Matz knew of Green-
stone's practice of leaving the pliant entrance prior to May 21, and
it does not appear that I. Matz had such knowledge.
On May 21, after Cole had complained to him about Greenstone,
Kiss questioned Hubacher, who informed him that Greenstone had
been in the laboratory that day for about one-half hour. Kiss then
consulted I. Matz and they summoned Cole and questioned him about
Greenstone's misconduct. They then called Hubacher and Mauro,
and Kiss also interviewed Anderson and Nathan Goldberg. All of
these employees substantiated Cole's report. During the course of
that afternoon, Dr. Bernard Goodman, plant physician, had occasion
to come through the employees' entrance of the plant, and found it
completely unguarded. He reported this to S. Matz who asked him
to convey the information to Kiss and I. Matz. At the hearing
Greenstone did not deny having left his post that afternoon, stating
merely that he did not remember whether he had done so. There-
after, Kiss interviewed Greenstone, who admitted that at times he
left his post of duty. Kiss then interviewed Katz as noted above,
and subsequently Kiss, I. Matz, and S. Matz decided to discharge
Katz and Greenstone. Kiss carried out this decision, informing
Greenstone at the time of his discharge that the reason therefor was
that he had neglected his duties.
Upon the entire record, we find that the evidence does not support
the allegations of the complaint that the respondent discharged
Greenstone because of his membership and activity in the Union.
We find that the respondent has not discriminated in regard to
the hire or tenure of employment of Joseph Greenstone.
Florence Kamens. The complaint alleges-that the respondent dis-
charged Kamens because of her membership and activity in the
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. The respondent contends that Kamens was laid off because
of a skin infection. Kamens was first employed by the respondent in
November 1933 and thereafter worked during various periods until
June 1, 1937. She worked in the packing department throughout
her tenure of employment.
Kamens joined the Union in January 1937, thereafter attended
meetings thereof, and spoke in favor of the Union to fellow employees
at the plant. As noted above, on April 8, Forelady Orman, after
informing employees that they were foolish to join the Union, pointed
to. Kamens and stated that•Kamens had nothing to lose by joining
the Union since she was only a temporary employee, but that other
employees had received steady employment. Shortly after this inci-
dent, according to Kamens' testimony, Orman informed Kamens that
unions were operated for profit by gangsters and racketeers, and that
the employees should not "rush to outside people." Kamens replied
that she thought unions were very beneficial since they gave em-
ployees security and eliminated the speed-up system. Orman replied
that "The only place you have security is six feet "under." On April
9, Kamens was reluctant to sign the petition for Ex-Lax Workers'
Labor Union, but finally did so after being urged by Assistant Fore-
lady Silverman. 'About this time, according to the testimony of
Lionel Layne, an employee in the packing department, Orman, refer-
ring to Kamens' opposition to Ex-Lax Workers' Labor Union and
her affiliation with the Union, remarked to him "If she does not
watch her step, she is going to get it." Orman made a substantially
similar statement to employee Yetta Shapiro, concerning Kamens,
according to Shapiro's testimony. While Orman denied the fore-
going statements attributed to her by, Kamens, Layne, and Shapiro,
in view of her expressed opposition to the Union we do not credit
her denials, and find accordingly.
We find that by the foregoing statements of Orman to Kamens,
Layne, and Shapiro, the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
At the hearing Kamens claimed that about April 15 her seat was
changed because of her membership in the Union. She was moved
from a position in the middle of the room, where she faced other
employees, to a position, herein called A, several feet from a men's
dressing room and toilet, where she sat facing the windows, with
her back to the other girls. She sat at A, except for occasional
temporary transfers, from about April 15 to June 1, when she was
laid off. However, it appears that she was moved at a time when
the work she had been, doing at her previous position was completed.
Moreover, she had previously been shifted about quite frequently, and
EX-I.AX, INC. 1115
had previously sat at A, although not for so long a period. Further-
more, other employees had been seated at A for as long or longer
periods than Kamens on this occasion, and it appears that position A
received the benefit of light and air from the windows. Neither
Kamens nor any other employee ever complained about being seated
there. Indeed, on cross-examination, in reply to a question as to
whether she had any objection to facing the window at Seat A,
Kamens answered "I had no objection to anything." We find that
the evidence does not support Kamens' claim of discrimination in
this regard.
On May 24, Kamens visited Dr. Bernard Goodman, plant phy-
sician. He found that she had a skin eruption on her fingers, pre-
scribed an ointment, and requested her to return on May 28. On
May 28, Dr. Goodman sent for her, examined her hands and feet,
and suspected that she was suffering from ringworm. He referred
her to Dr. Elias Abramowitz, an eminent authority on dermatology.""
She visited Dr. Abramowitz the same day. Prior to her doing so
Goodman telephoned Abramowitz, and informed him that he, Good-
man, wanted Abramowitz's diagnosis of the skin condition of a food
handler in the plant.
Dr. Abramowitz examined Kamens, gave her some medicament to
apply, and by letter dated May 29 wrote to Dr. Goodman as follows :
I examined Miss Florence Kamens. She gave a definite history
of ringworm infection of the feet with recurrences. With this
she has a vesicular eruption on her fingers of two weeks' dura-
tion. There is a history of previous outbreaks on the hands.
She is subject to dermatophytosis, and since she is a food-
handler, she should not be permitted to handle any of the material
at the Ex-Lax Plant.
Dr. Goodman received this letter on June 1. On that day he again
examined Kamens and found that her condition persisted. Goodman
informed Kiss of Dr. Abramowitz's letter. Kiss, after discussing
the matter with Goodman, conferred with I. Matz and they decided
that Kamens should be laid off until her condition cleared. On the
same day, Kiss handed Kamens a check for 2 days' pay and said,
"I understand you have a skin condition; come back when your skin
is cleared up." He also advised her that when her condition cleared,
she should obtain a certificate from Dr. Abramowitz to that effect and
Kiss would reinstate her.
Kamens testified that during her interviews with Dr. Abramowitz
and Dr. Goodman, both of them told her that they would see to it
n Dr. Abramowitz had formerly been employed by the respondent as a scientific
consultant.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that her work in the plant was changed. Abramowitz and Goodman
denied having made any such statements. Upon all the evidence, we
credit their denials. In any event, there is no showing of any avail-
able work to which Kamens could have been safely assigned, in view
of her skin condition. While there is some evidence that a number
of other employees had in the past been transferred to other work
because of some ailment, none of such employees suffered from a
disability similar to that of Kamens.
On June 2, Kamens visited her family physician, Dr. Weingrow.
He gave her a note reading as follows : "This is to certify that I have
examined Florence Kamens and find her in normal health. There
is nothing whatever wrong with her skin." Kamens showed this
note to Kiss on June 2. He stated that he had told her to bring a
certificate from Dr. Abramowitz and not from her family physician,
that she would have to see Dr. Goodman, and that he would arrange
an appointment for her.
Kiss arranged for Kamens to see Dr. Goodman, and she visited him
on June 3. Dr. Goodman found that she had dermatophytosis (ring-
worm) of the hands and feet. Kamens told him about her visit to
Dr. Weingrow. Dr. Goodman thereupon telephoned Dr. Weingrow
and informed him that Kamens had been to a dermatologist and
that the latter's diagnosis and that of Dr. Goodm to was contrary
to Dr. Weingrow's. Dr. Weingrow admitted that he was not a
dermatologist. Dr. Goodman examined Kamens subsequently on
June 8, 11, and 18, and found that her condition persisted.
On June 11, Kamens visited the skin clinic of the New York In-
firmary for Women and Children. She was examined there by
Dr. Mary Man, a doctor doing post=graduate work in dermatology.
Dr. Man diagnosed her condition as ringworm (dermatophytosis) on
the feet and an allergic reaction ("id.") thereto on the hands. Dr.
Man gave her a note reading as follows : "Florence Kames . . . has
visited our Skin Clinic and we have found her to have acne vulgaris,
Pityriosis capitis, dermatophytosis and `id.' None of these should
prevent her from working or handling foods, as the only infectious
site is on the feet. The vesicles on the hands are an `id.' and the
tinea can never be recovered from them." After receiving this note,
Kamens mentioned to Dr. Goodman that she had a note from a
dermatologist stating that she could work. Dr. Goodman, however,
replied that he was the company doctor and had the final decision in
the matter.
On June 24, Kamens again visited 'the New York Infirmary for
Women and Children, and was examined by Dr. Margaret Klumpp,
a dermatologist connected with the New York Infirmary. She found,
as had Dr. Man, that Kamens' condition was dermatophytosis and
EX-LAXX, INC. 1117
"id." She noted on the hospital record that the condition of the
hands and feet had improved, but that the treatment should continue.
Dr. Man testified at the hearing as a witness for the Board. She
confirmed her diagnosis on June 11, and expressed as her opinion that
there was no reason why Kamens could not handle food or chocolates,
since the condition of her hands was not infectious, and since the
fungi which transmit the infection are practically never found in an
eruption on the hands in a case like that of Kamens.
Dr. Abramowitz'and Dr. Klumpp testified at the hearing for the
respondent. Dr. Abramowitz stated that in his opinion a person
with Kamens' condition should not be permitted to handle food.
He testified that it was very difficult to prove that the fungi were
not present in an eruption on the hands, and that occasionally they
were present, in "id." cases. He further testified that it was fre-
quently impossible to distinguish between a ringworm condition on
the hands, and a reaction on the hands to a ringworm condition on
some other part of the body. Moreover, he testified that irrespective
of whether the condition of the hands is ringworm or a reaction to
ringworm on some other part of the body the existence of vesicular
eruptions such as Kamens had on her hands, would be sufficient to
bar such a person from handling food or anything connected there-
with. Dr. Klumpp's testimony was substantially similar to that of
Dr. Abramowitz.
The respondent also produced as a witness Dr. Samuel Frant, a
physician in charge of a division of the Bureau of Health of the City
of New York. Dr. Frant testified that the Bureau of Health pro-
hibited persons suffering from ringworm on the hands from handling
food, and pointed to Section 146 of the Sanitary Code of the State
of New York which provides in part as follows : "No person who is
affected with any disease in a communicable form or is a carrier of
such disease shall work in any place where food or drink is prepared,
cooked, mixed, baked, exposed, bottled, packed, handled, stored,
manufactured, offered for sale, or sold, and no food dealer shall em-
ploy any such person or any person suspected of being affected with
any disease in a communicable form or of being a carrier of such
disease."
The respondent's plant was shut down from July 9 to August 9.
In the middle of July, Kamens secured employment at a summer
camp, and returned to the city shortly after Labor Day. Upon her
return she made several attemps to see Kiss and Dr. Goodman. She
telephoned the office of Dr. Goodman several times, and his nurse
informed her that he was out of, town. On one occasion , Kamens
stopped in at Dr. Goodman's office, apparently without having made
an appointment, and he refused to see her. On another occasion she
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visited the plant seeking an interview with Dr. Goodman or Kiss.
She was told that she could not see Dr. Goodman at the plant and
that Kiss was not in. On October 20, Kamens wrote to Kiss as
follows :
Would you be good enough to arrange an appointment to see
me at your office at your convenience.
On October 25, Kiss' secretary replied as follows :
With reference to your letter of October 20, please write the
specific reason why you want to see Mr. Kiss and upon receipt of
this advice, you will hear from us again.
On October 26, Kamens wrote to Kiss as follows :
In reference to your letter of the 25th of October, I would
like to arrange an appointment with you to discuss my reinstate-
ment in your employ.
On October 28, Kiss replied as follows :
We have your letter of October 26.
Last May, you were examined by a dermatologist who found
that you were suffering from a skin infection, including an
eruption on your fingers with recurrent outbreaks. In view of
the circumstances, we regret we could not use your services.
So far as the record shows, Kamens never thereafter communicated
with the respondent, Dr. Goodman, or Dr. Abramowitz ; and she
was never examined by any doctor in regard to her skin condition
after Dr. Klumpp's examination of June 24. Kiss stated at the
hearing that the respondent still considered Kamens laid off, and
not discharged; and that she would be reinstated upon the certifica-
tion of Dr. Abramowitz that her condition had been cleared up.
Dr. Goodman stated that he had never refused Kamens an appoint-
ment, and that when he had determined that her condition had
sufficiently improved he would refer her, again to Dr. Abramowitz.
Upon all the evidence, we are unable to find that the respondent
did not in good faith rely on the diagnosis and opinion of Dr. Abramo-
witz, in laying off_Kamens. Nor is there sufficient evidence to indicate
that the respondent has discriminatorily refused to reinstate her. We
find that the evidence does not support the allegations of the camplaint
that the respondent discharged Kamens because of her membership
and activity in the Union.
We find that the respondent has not discriminated in regard to the
hire and tenure of employment of Florence Kamens.
Harold Leimsider. The complaint, as amended at the hearing,
alleges that the respondent transferred and demoted Leimsider be-
cause of his membership in and assistance to the Union; and that the
EX-LAX, INC. 1119
respondent discharged him because of his membership and activity
in the Union, and because he gave testimony under the Act. The re-
spondent contends that Leimsider was not demoted, that he was trans-
ferred at his own request, and that he was discharged for misconduct
on April 29, 1938.
Leimsider was employed by the respondent in 1931. He worked in
the moulding department under the supervision of Foreman Nathan
Goldberg. He joined the Union in August 1936 and became active
in union affairs. At the time the Union was seeking outside affiliation,
in April 1937, and for some time prior thereto, Leimsider was vice
president of the Union. He played a prominent part in the Union's
attempts to affiliate with the American Federation of Labor. He and
an organizer for the American Federation of Labor were the only two
persons who spoke at the April 1 meeting of the Union. Leimsider
and two other employees constituted the organizing committee of the
Union. He solicited employees to join the Union at the plant, and
Foreman Goldberg knew of such solicitation. Leimsider was one of
those excluded from the April 14 meeting of Ex-Lax Workers' Labor
Union because of their membership in the Union. In September 1937
he was elected president of the Union, and occupied that office at the
time of his discharge.
As noted above, on April 5, shortly after the first public meeting of
the Union at which Leimsider spoke, Kiss called Leimsider to his
office and questioned him about the Union. Kiss asked him what he
knew about the organization which was being formed, and Leimsider
replied that he knew nothing of any such organization. Kiss then
stated that Leimsider's work was excellent, that Leimsider deserved
higher wages, but that the respondent's business was bad. Leimsider,
however, refused to divulge information about the Union, and Kiss
finally remarked "You are not helping me any . . . you can go back
and print it in your labor journal." 12
For about 2 years prior to June 1937, Leimsider was in charge of
the production of chocolate in the Number Five Room, a subdivision of
the moulding department. His duties there consisted of collecting
raw materials and preparing them, and taking inventory at the end of
the month. He also worked at various times in the fig room, another
subdivision of the moulding department, and performed other duties
in that department.
Toward the end of April 1937, while Leimsider was engaged in
taking inventory, Foreman Goldberg called him aside and said, accord-
ing to Leimsider's testimony" . . . after all, ... the boss doesn't have
'a Kiss stated that he merely questioned Leimsider as to whether be or other , employees
had grievances . He denied using the word "union" in this conversation , although admit-
ting that at the time he had "heard rumors might be some union forming." We have
already found above that this incident occurred substantially as testified to by Leimsider.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to tolerate your nonsense . . . You don't have to be doing this sort of
work. You can always be switched to knocking out moulds, carrying
moulds, or any other sort of a job around the place . . . if we had a
union in the plant ... the minimum wage of the present worker
would be around seventy cents an hour, like in other plants ... but
what are we going to do with the men asking forty-one and forty-two
dollars a week in the plant? That means they will have to be cut
down to twenty-eight dollars a week." Goldberg did not deny having
made these remarks. In view of his participation in the formation of
Ex-Lax Workers' Labor Union, as noted above, his statement to Katz,
also noted above, to the effect that the latter's activity in behalf of
union members at the April 14 meeting of Ex-Lax Workers' Labor
Union would do him no good, and the foregoing conversation with
Leimsider, we find that Goldberg was-opposed to the Union. We
further find that by this conversation with Leimsider, Goldberg was
expressing to Leimsider his opposition to the Union, and was warning
Leimsider that he might be demoted if he persisted in his activity
in behalf of the Union.
During the latter part of May 1937, Leimsider requested and was
granted a leave of absence to have his tonsils removed. When he re-
turned to the plant about June 1, according to his testimony, Fore-
man Goldberg told him not to resume his position in the Number Five
Room. Thereafter he was assigned only to the miscellaneous duties of
a "handyman," without any decrease in salary. When he returned
from his vacation in August, he alone was assigned to cleaning work
in the monkey house is for several weeks. Thereafter several em-
ployees, including Leimsider, were assigned to part-time work in the
monkey house, and Leimsider alternated between 2 weeks in the
monkey house and 4 weeks as a "handyman." After his return to the
plant in June, Leimsider was never again permitted to take charge
of manufacturing Number Five chocolate, which he had previously
done for 2 years, or to work on the manufacture of figs or to engage in
other work which he had previously performed. His duties as a
handyman were menial in character, and he had performed such duties
prior to June, only at the commencement of his employment with
the respondent.
While it is undisputed that Leimsider was deprived of the position
he previously occupied in the Number Five Room, according to the
testimony of Kiss and Goldberg, the change in his duties took place
pursuant to his own request, and his duties as a handyman were duties
he had previously performed when the Number Five Room was not in
operation. Leimsider admitted that prior to his tonsil operation he
13 The monkey house is a part of the plant in which the respondent houses monkeys used
for experimental purposes related to the manufacture of laxatives.
EX-T,A,X, INC. 1121
had informed Kiss and Goldberg that he was subject to colds and
dizziness because of his tonsils, and that he feared possible accidents
around the kettles in the Number Five Room. He denied, however,
having requested a change in his duties. In view of Goldberg's pre-
vious warning to him about a possible change in his duties, and upon'
all the evidence, we find, in accordance with Leimsider's testimony,
that he was transferred and demoted in June 1937, because of his
membership in and assistance to, the Union.14
On June 23, 1937, Kiss called Leimsider to his office and, according
to Leimsider's testimony, told him that he had been'informed that
Leimsider was soliciting for the Union on company time and that he
had been threatening employees with regard to joining the Union.
Kiss referred in particular to the case of an employee whom Leim-
sider allegedly pushed into a platform, causing him injury. Leim-
sider denied Kiss' charges and requested the name of the employee
in question. Kiss refused to divulge his name, stating that he
had once asked Leimsider for information and the latter had refused
to tell him the truth. Leimsider then referred to his 6 years' tenure
of employment with the respondent, whereupon Kiss replied, "Your
six years don't mean as much as that toilet, and you can take your
six years and . . . Don't forget, I am warning you. If I get
another complaint from you, I am warning you, out you go as quick
as you came into the place." Kiss did not substantially deny the
foregoing testimony, stating at the hearing that he warned •Leimsider•
about using "strong-arm methods" in regard to solicitation for the
Union.
Leimsider testified at the hearing on March 30 and 31, 1938. He
denied ever pushing any person into a platform, or pushing anyone
at the plant, or threatening anyone at the plant or elsewhere, phys-
ically or otherwise, or organizing for the Union during working
hours, or knocking any person over so as to cause injury to such
person.
Kiss testified at the hearing on April 26, 1938, and revealed the
name of the employee whom Leimsider had allegedly injured, one
David Wallinrod. Wallinrod was subpoenaed by the Board and
testified on the same day.
Wallinrod testified that at the start of organization by the Union,
Leimsider solicited him to join, that he refused, and that Leimsider
pushed him against an iron platform causing injury to his foot.
14 The complaint as amended alleged that such demotion took place on or about September
1. During the course of the hearing the Trial Etxaminer granted a motion of counsel for
the Board to conform the pleadings to the proof in regard to insubstantial matters such as
dates and names Assuming , however, that this variance between the pleadings and the
proof is not covered by this motion , we find that the issues in regard to Leimsider 's change
in duties were thoroughly tried at the hearing, and that no prejudice to the respondent
results from such variance , or from our findings herein.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallinrod further testified in regard to a second incident, in sub-
stance, that a few months before April 26, 1938, Leimsider swore
at him and threatened to hit him, when a fellow employee intervened.
Wallinrod further testified in regard to a third incident, in substance,
that about 5 or 6 weeks prior to April 26, 1938, Leimsider hit him
with a mop and knocked him down, injuring his head and side and
causing to absent himself from work for 2 days. -
Leimsider took the witness stand on April 28, 1938, and denied
Wallinrod's testimony., The testimony of Wallinrod and other wit-
nesses with regard to the three foregoing incidents is not credible.
With regard to the first assault, Kiss testified at first that he was told
about the incident by some person whose name he could not remem-
ber, and that he then called in Wallinrod and questioned him about
the incident in the presence of I. Matz. Later Kiss testified that he
did not recall whether anyone reported the incident to him before
he sent for Wallinrod, that he thought Wallinrod himself was the
person who first told him about the incident, that Wallinrod did not
come to his office at the time, that Wallinrod told him about it at
some place in the plant, and that thereafter Kiss called him to the
office of I. Matz. Kiss also testified that on the same day he ques-
tioned Foreman Goldberg about the incident and that Goldberg
denied any knowledge of the incident. Wallinrod categorically de-
nied ever telling Kiss about the incident, and testified that he
informed Sidney Matz about it in the presence of I. Matz and Fore-
man Goldberg. Sidney Matz, who took the witness stand immedi-
ately after Wallinrod, did not mention the incident in his testimony.
With respect to the second' incident referred to above, Wallinrod
stated that it occurred a few months before April 26, 1938. Mack
Coplan, an employee who testified in corroboration of Wallinrod
regarding the second incident, placed it in June 1937. In regard to
the mop incident Wallinrod stated that it occurred about 5 or 6
weeks before April 26, 1938. Coplan, however, placed the incident
about 8 months prior to May 23, 1938. Upon all the evidence, we
do not credit the foregoing testimony of Wallinrod, Kiss, and Cop-
Ian. We credit Leimsider's denial of Wallinrod's testimony.
Kiss was present at the hearing while Wallinrod testified on April
26 and while Leimsider testified on April 28, when the original
hearing in the instant case was closed. Leimsider returned to work
on April 29. Upon Kiss' return to the plant that day, he and coun-
sel for the respondent interviewed a number of Leimsider's fellow
employees and received reports from them of certain further instances
of alleged misconduct on the part of Leimsider. These instances
are noted below. At the end of the day, Kiss called Leimsider to
his office, reminded Leimsider of the Warning Kiss had given him
EX-LAX, INC. 1123
in June about the use of "strong-arm tactics," stated that he had
abused his privileges, and discharged him. Leimsider inquired as
to the identity of his accuser and what "strong 'arm tactics" Kiss
was referring to, and Kiss replied "Well, you will find it in the testi-
mony already given."
On May 17, 193'8, the hearing was reopened and Leimsider testified
to the foregoing circumstances surrounding his discharge. On May
23, the respondent adduced evidence concerning the discharge. Kiss
testified as follows concerning the reason for Leimsider's discharge :
"Well, having given Mr. Leimsider a warning in June last year not
to use any more strong-arm methods in our place, and if he did he
would be discharged-in fact, I threatened him at that time I would
have him locked up, and having heard during the testimony of Mr.
Wallinrod that he again attacked Mr. Wallinrod and he injured
him, when I got back to the plant I made inquiries and I found he
had the habit of doing the same thing, of fighting around with other
people besides Mr. Wallinrod, and that was sufficient reason for me
to discharge him." _
At the reopened hearing the respondent introduced the following
testimony of the following fellow employees of Leimsider, all but one
of whom were interviewed regarding these matters by counsel for
the respondent and Kiss, on April 29, prior to Leimsider's discharge :
Hyman Jacobs testified that on several occasions Leimsider fought
with him and struck him, and once, in particular, in February 1937,
Leimsider hit him, and threw him on the floor, causing injury to his
head and back. Questioned as to what caused Leimsider to strike
him on this occasion, Jacobs answered that about a week after he
began to work at the plant Leimsider began to bully and hit him,
and did so repeatedly. However, Jacobs never reported Leimsider
to his uncle, Foreman Goldberg, or any officials of the respondent,
until the day of Leimsider's discharge. Employees Octave Brunet
and William Scherer corroborated Jacobs as ,to the February 1937
incident.
Max Munvez testified that on one occasion in about May 1937,
Leimsider told him that he was not working fast enough, to which
Munyez replied that he should mind his own business. Munvez
stated that thereupon an argument ensued and Leimsider was about
to strike him, when Coplan intervened. Munvez never reported this
incident to any official of the respondent until the day of Leimsider's
discharge. Munvez claimed that Leimsider was always "bulldozing"
him. Coplan corroborated Munvez regarding the May 1937 incident.
Octave Brunet testified that about 11/2 years before May 23, 1938,
the following incident took place: Leimsider was moving barrels out
to the plant entrance; Brunet placed a paddle on one of the barrels.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leimsider threw it on the floor; a verbal exchange took place, and
then a -brief scuffle over the paddle ensued. Employee Scherer inter-
vened as Leimsider was about to strike Brunet. Brunet did not re-
- port this incident to the respondent until the day of Leimsider's
discharge. Scherer corroborated Brunet, stating that he intervened
because "they were both getting sore."
While Leimsider, as noted above, prior to the testimony of Jacobs,
Munvez and Brunet, denied generally ever having threatened, or
pushed anyone or knocked anyone over, he did not take the stand
after these persons testified and did not specifically contradict their
testimony. Under these circumstances, we credit the corroborated
testimony of Jacobs, Munvez, and Brunet.
From all the evidence, however, we are convinced that the real
reason for Leimsider's discharge was his membership and activity
in the Union and the fact that he gave testimony at the hearing.
In view of the facts that the specific incidents testified to by Jacobs,
Munvez, and Brunet, occurred prior to Kiss' warning to Leimsider
of June 23, that these occurrences were never reported to the respond-
ent until the day of Leimsider's discharge, when the respondent was
led to make inquiries concerning such incidents because of the in-
credible testimony of Wallinrod, that the arguments with Munvez
and Brunet do not appear to have serious import, and that the re-
spondent does not claim to have discharged Leimsider because of
these incidents alone, we find that the respondent did not discharge
him because of the reports of Jacobs, Munvez, and Brunet. In view
of the respondent's expressed opposition to the Union, the outstand-
ing activity of Leimsider therein, the respondent's knowledge of
such activity, Kiss' questioning of Leimsider on April 5 and his re-
marks in connection therewith, the discriminatory transfer and
demotion of Leimsider, the incredible testimony of Wallinrod and
Kiss noted above, the occurrence of the discharge on the day follow-
ing that on which Leimsider gave testimony, and the other circum-
stances noted above, we find that the respondent discharged Harold
Leimsider because of his membership and activity in the Union and
because he gave testimony under the Act.
We find that the respondent has discriminated in regard to the
terms, conditions, hire, and tenure of employment of Harold Leim-
sider, and has discriminated against him because he gave testimony
under the Act, thereby discouraging membership in the Union, and
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act 15
is The respondent contends that a determination of the New York State Labor Depart-
ment that Leimsider was discharged for cause is a final adjudication of his'case. This
contention is without merit. Section 10 (a) of the Act provides that the Board's power
to prevent unfair labor practices is exclusive.
EX-LAX, INC. 1125
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON +()OMMEROE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act, and to restore as nearly as possible the conditions which existed
prior to the commission of the unfair labor practices.
We have found that the respondent dominated and interfered with
the formation and administration of, and contributed support to,
Ex-Lax Workers' Labor Union, also called Ex-Lax Employees Union.
Our finding would ordinarily warrant the issuance of an order direct-
ing the respondent to disestablish the organization as a representative
of its employees for the purposes of collective bargaining, but we
shall withhold such an order since it is apparent from the record
that this labor organization has been replaced by the Union of Ex-
Lax Employees. However, in order to bar a resumption or repeti-
tion of the activities which constituted the unfair labor practices,
we shall order the respondent to cease and desist from dominating,
interfering with, or contributing support to, Ex-Lax Workers' Labor
Union or Ex-Lax Employees Union.
We have found that the respondent has dominated and interfered
with the formation and administration of, and contributed support
to, The Union of Ex-Lax Employees. The continued existence of
that organization is a' consequence of violation of the Act, thwarting
the purposes of the Act and rendering ineffective a mere order to
cease the unfair labor practices 1° In order to effectuate the policies
of, the At and free the employees of the respondent from such
domination and interference, and the effects thereof, we shall order
the respondent to refrain from recognizing The Union of Ex-Lax
Employees, as the representative of any of the respondent's em-
ployees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
and conditions of work, and completely to disestablish it as such
representative.17
1e Consolidated Edison Company v. N. L R. B., 305 U. S. 197.
17 N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., at at., 303 U. S. 261.
451269-42-vol. 34-72
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that the respondent discriminated in regard to the
terms, conditions, hire, and tenure of employment of Harold Leim-
sider and discriminated against him because he gave testimony under
the Act. Leimsider stated at the hearing that he desired reinstate-
ment to the position which he occupied prior to his discriminatory
demotion. In order to effectuate the policies of the Act we shall
order the respondent to offer Harold Leimsider immediate and full
reinstatement to the position he occupied prior to his demotion in
June 1937, or to a substantially equivalent position, without prejudice
to his seniority and other rights and privileges ; and to make him
whole for any loss of pay he may have suffered by reason of his dis-
criminatory discharge, by payment to him of a sum of money equal
to the amount he normally would have earned as wages from- the
date of his discharge to the date of the offer of reinstatement, less
his net earnings 18 during said period.
Since we have found that the respondent has not discriminated
in regard to the hire or tenure of employment of Philip Katz, Joseph
Greenstone, and Florence Kamens, we shall dismiss the allegations
of the complaint relating to these persons.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Ex-Lax Workers' Labor Union, also called Ex-Lax Employees
Union was a labor organization, and The Union of Ex-Lax Em-
ployees and Chemical Workers Union of Greater New York, Federal
Local #20523, American Federation of Labor, are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of Ex-Lax Workers' Labor Union, Ex-Lax Employees Union,
and The Union of Ex-Lax Employees, and contributing support
to them, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the terms, conditions, hire, and
tenure of employment of Harold Leimsider, and by discriminating
against him because he gave testimony under the Act, the respond-
Is By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with his obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for the unlawful
discrimination against him and the consequent necessity of his seeking employment else-
where. 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.
Monies received for work performed upon Federal, State , county, municipal, or other
work-relief projects shall be considered as earnings . See Republic Steel Corporation v.
National Labor Relations Board, 311 U. S. 7.
EX-LAX, INC. % 1127
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (3) and (4) of the Act.
4. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor paractices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. The respondent has not discriminated in regard to the hire or
tenure of employment of Philip Katz, Joseph Greenstone, and
Florence Kamens, within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that Ex-Lax,
Inc., Brooklyn, New York, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Chemical Workers Union of
Greater New York, Federal Local #20523, American Federation
of Labor, or any other labor organization of its employees, by dis-
criminating in regard to the terms, conditions, hire, or tenure of
employment of any of its employees;
(b) Discriminating against any employee because he has given
testimony under the Act;
(c) In any manner dominating or interfering with the administra-
tion of Ex-Lax Workers' Labor Union, Ex-Lax Employees Union.
or The Union of Ex-Lax Employees, or the formation or administra-
tion of any other labor organization of its employees, or contributing
support to the above-named organizations or to any other labor
organization of its employees;
(d) In-any other manner interfering with, restraining, or coercing
its employees in the exercise of. the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Refrain from recognizing The Union of Ex-Lax Employees,
as a representative of its employees for the purposes of dealing with
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of work, and com-
pletely disestablish The Union of Ex-Lax Employees, as such
representative;
(b) Offer to Harold Leimsider immediate and full reinstatement
to the position he occupied prior to his demotion in June 1937, or to
a substantially equivalent position, without prejudice to his seniority
and other rights and privileges ;
(c) Make whole Harold Leimsider for any loss of pay he may
have suffered by reason of his discharge by payment to him of a sum
of money equal to that which he normally would have earned as
wages during the period from the date of his discharge to the date
of the offer of reinstatement, less his net earnings during such
period;
(d) Post immediately in conspicuous places at its plant, and main-
tain for a period of at least sixty (60) consecutive days from the
date of posting, notices to its employees stating: (1) that the re-
spondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this
Order; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a), (b), and (c) of this Order; (3) that the
respondent's employees are free to become or remain members. of
Chemical Workers Union of Greater New York, Federal Local
#20523, American Federation of Labor, and the respondent will
not discriminate against any employee because of membership or
activity in that organization;
(e) Notify the Regional Director of the Second Region in writing
within, ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed in so far as it alleges that the respondent discriminated
in regard to the hire or tenure of employment of Philip Katz, Joseph
G reenstone, and Florence Kamens.