Julius Resnick, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1949

86 N.L.R.B. 38 (N.L.R.B. 1949)

In the Matter of JULIUs RESNICK , INC. and INTERNATIONAL HANDBAG,
LUGGAGE, BELT & NOVELTY WORKERS ' UNION, A. F. or L.
Case No. 3-CA-32.-Decided September 12, 1949
DECISION
AND
ORDER
On February 28, 1949, Trial Examiner Isadore Greenberg issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices, and recommended dismissal as to them. Thereafter, the
A. F. of L., the Independent, and the General Counsel filed excep-
tions to the Intermediate Report, and the Independent and the Gen-
eral Counsel submitted suporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
,it the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except insofar as they are incon-
sistent with the Decision and Order herein.
(1) We agree with the Trial Examiner's finding that the Respond-
ent did not assist in the organization of the Independent in violation
of Section 8 (a) (2). The Respondent's floorladies, whom we found
to be supervisors in our earlier proceeding involving the Respondent I
participated to some extent in the organization of the Independent.
The Respondent contended, however, that the status of the floorladies
had changed since the Board's earlier decision, and that they were no
longer supervisors. Although this issue is not free from doubt, we
agree with the Trial Examiner that the present record does not con-
1 Matter o f Julius Resnick , Inc., 71 N. L. R. B. 184.
86 N. L. R. B., No. 10.
38
JULIUS RESNICK, INC. 39
taro sufficient evidence to support the allegation that the floorladies
are now supervisors. Furthermore, while there are indications that
the Respondent and the Independent may have agreed to the terms of
their contract before the Independent had organized the Respondent's
employees, and the Respondent did in fact act precipitately in signing
the contract in the face of A. F. of L. objections and charges, the Re-
spondent's action did not constitute a violation of the Act, because
the Independent represented a majority of the Respondent's employees
when the contract was executed on March 3, 1948.
(2) The contract between the Respondent and the Intervenor pro-
vided for a wage increase limited to Independent members. The
complaint herein does not specifically allege this discriminatory pro-
vision to constitute a violation of the Act. Although the complaint
alleges violations of Section 8 (a) (1) and (2) in general language,
and although the contract containing the illegal clauses was intro-
duced in evidence, we agree with the Trial Examiner that this did
not constitute sufficient pleading and litigation of the wage-increase
issue. In view of the fact that the General Counsel specifically
pleaded and litigated the illegality of two other clauses of the same
contract, the Respondent and the Intervenor were justified in con-
ducting their case on the assumption that they were not charged with
a violation of the Act by reason of the inclusion of the wage-increase
clause in the contract.2
(3) We agree with the Trial Examiner's conclusion that the con-
tract executed by the Respondent and the Independent is violative of
Section 8 (a) (1) of the Act because it contains provisions for union
security which are not sanctioned by Section 8 (a) (3) of the Act.
Unlike the Trial Examiner, however, we conclude further that the
inclusion of these clauses in the contract constituted a violation of
Section 8 (a) (2) also. In view of this we do not agree with the
Trial Examiner's recommendation that the appropriate remedy is
only to set aside the illegal clauses.
The contract between the Respondent and the Independent provides
that the Respondent shall hire only members of the Independent
unless the Independent is unable to provide workers within 48 hours,
that all nonmembers of the Independent working for the Respondent
must obtain work permits from the Independent, and that these
nonmembers can be replaced by qualified members at any time. The
effectiveness of these provisions was not conditioned upon their rati-
fication by a union-shop election in accordance with Section 9 (e) (1)
of the Act. Indeed, these provisions could not have been ratified by
2 Matter of J. I. Cabe Company, 71 N. L . R. B. 1145.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such an election, as they provide for a greater degree of union security
than is permitted by Section 8 (a) (3) of the Act .3
The Independent contends that the union-security clause does not
violate the Act on the ground that it has not been enforced. We
dealt with the same contention in Matter of Hager and Sons Hinge
Manufacturing Company,4 where we found that a contract similar to
the one under consideration did not constitute a bar to a representa-
tion proceeding, stating :
As the union-shop provision does not satisfy the conditions
laid down in the proviso to Section 8 (a) (3), it is illegal, even
if no action has been taken pursuant to it. The mere existence
of such a provision acts as a restraint upon those desiring to
refrain from union activities within the meaning of Section 7 of
the Act, and is evidence that the Intervenor and the Employer
are in accord in denying employment to those who refuse to join
the Union within the required time.
Accordingly, we find that by entering into the contract with the
Independent, the Respondent restrained its employees in the exercise
of the rights guaranteed by Section 7 of the Act, and thereby vio-
lated Section 8 (a) (1) of the Act. Moreover, by assenting to an
unlawful union-security clause, the Respondent lent its support to
the Independent in recruiting and maintaining its membership, and
thus violated Section 8 (a) (2) as well as Section 8 (a) (1) of the
Act. The effect of such violations was to coerce the employees of the
Respondent into becoming or remaining members of the Independent.
It was to avoid such coercion that Sections 8 (a) (3) and 9 (e) were
included in the Act. It would not effectuate the purposes of these
sections merely to order the eradication of the illegal provisions from
the contract, and permit the Independent to continue to enjoy a repre-
sentative status which it has strengthened by virtue of these illegal
provisions. Accordingly, in order to effectuate the purposes and
policies of the Act, we shall order the Respondent to withdraw recog-
nition from the Independent, and to cease giving effect to its contract
of March 3, 1948, with that organization, or to any modification, exten-
sion, supplement, or renewal thereof, unless and until the Independent
has been certified by the Board. Nothing in our order, however, shall
be deemed to require the Respondent to vary or abandon those wage,
hour, seniority, or other substantive features of its relations with its
employees, established in performance of said contract, or to prejudice
the assertion by the employees of any rights they may have under such
agreement.
s Matter of National Maritime Union, 78 N. L. R. B. 971.
80 N. L. R. B. 163.
JULIUS RESNICK, INC. 41
In reaching this result, we have not taken into consideration the
fact that the contract between the Independent and the Respondent
also provided for the deduction of union dues without making such
deductions dependent upon the receipt of individual authorizations.
While Section 302 (a) makes it unlawful for an employer "to pay
or deliver, or to agree to pay or deliver, any money . . . to any rep-
resentative of any of his employees . . ., Section 302 (c) (4) exempts
from this provision ". . . money deducted from the wages of em-
ployees in payment of membership dues in a labor organization; Pro-
vided, That the employer has received from each employee, on whose
account such deductions are made, a written assignment which shall
not be irrevocable for a period of more than one year, or beyond
the termination date of the applicable collective agreement, which-
ever occurs sooner." The quoted language indicates that only the
actual deduction of union dues without proper authorization is for-
bidden, and that a mere agreement to deduct union dues, with no
provision for authorization, is not itself unlawful.5
In the instant case, the Respondent did not deduct any dues until
it received individual written authorizations. As it was not shown
that these authorizations did not comply with the proviso to Section
302 ((,) (4), no violation of Section 302 has been established.
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Julius Resnick,
Inc., Syracuse, New York, and its officers, agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Recognizing Pocketbook Workers Union of New York, or
any successor thereto, as the representative of any of its employees
for the purposes of dealing with the Respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until said organization
shall have been certified by the National Labor Relations Board;
(b) Performing or giving effect to its contract of March 3, 1948,
with Pocketbook Workers Union of New York, or to any modification,
extension, supplement, or renewal thereof, or to any other contract,
agreement, or understanding entered into with said organization relat-
ing to grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment, unless and until said
organization shall have been certified by the National Labor Rela-
tions Board.
" See Matter of Decker Clothes, Inc., 83 N. L . R. B. 484 ; RESTATEMENT of CONTRACTS,
236 (e ). Insofar as Matter of Hager & Sons Hinge Manufacturing Company , supra, ex-
presses a contrary view, it is hereby overruled.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withold all recognition from Pocketbook Work-
ers Union of New York as the representative of any of the Respond-
ent's employees for the purposes of dealing with the Respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until said
organization shall have been certified by the National Labor Relations
Board;
(b) Post at its plant at Syracuse, New York, copies of the notice
attached hereto, marked "Appendix A." 6 Copies of said notice, to
be furnished by the Regional Director for the Third Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL withdraw and withhold all recognition from POCKET-
BOOK WORKERS UNION OF NEW YORK as the representative of any
of our employees at our Syracuse, New York, plant, for the pur-
poses of dealing with us concerning grievances, labor disputes,
wages, rates of pay, hours of employment,. or other conditions
of employment, unless and until Pocketbook Workers Union of
New York shall have been certified by the National Labor Rela-
tions Board as the bargaining representative.
WE WILL cease performing or giving effect to our contract of
March 3, 1948, with POCKETBOOK WORKERS UNION OF NEW YORK
covering employees at our Syracuse, New York, plant, or to any
modification , extension , supplement, or renewal thereof, or to
6In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words, "A DECISION AND ORDER," the
words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
JULIUS RESNICK, INC. 4a
any other contract, agreement, or understanding entered into with
said organization relating to grievances, labor disputes, wages,
rates of pay, hours of employment or other conditions of employ-
ment, unless and until said organization shall have been certified
by the National Labor Relations Board.
WE WILL NOT otherwise interfere with the representation of
our employees through a labor organization of their own choosing.
JULIus RESNICK, INC.,
Employer.
Dated---------------------- By ----------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,,
and must not be altered, defaced, or covered by any other material..
INTERMEDIATE REPORT
Mr. Richard ILipsitz and Mr. John C. McRee, for the General Counsel.
Mr. Philip Hillsberg, of Syracuse, N. Y., for the Respondent.
Mr. Maurice S. Mosesson, of New York, N. Y., for the New York IndustriaL
Council.
Mr. Max H. Frankle, of New York, N. Y., for the A. F. of L.
Boudin, Cohn and Glickstein, by Mr. Samuel Harris Cohen, of New York, N. Y_
for the Independent.
STATEMENT OF THE CASE
Upon a charge duly filed by International Handbag, Luggage, Belt & Novelty-
Workers' Union, A. F. of L., herein called the A. F. of L., the General CounseL
of the National Labor Relations Board,' by the Regional Director for the Third.
Region (Buffalo, New York), issued his complaint, dated May 7, 1948, against
Julius Resnick, Inc., herein called the Respondent, alleging that the Respondent
had engaged, and was engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (2), and Section 2 (6) and (7) of the National Labor
Relations Act, as amended (June 23, 1947, Public Law 101, 80th Congress, Chap-
ter 120, 1st Session, 61 Stat. 136), herein called the Act. Copies of the charge-
and complaint, and notices of hearing thereon, were duly served upon the Re-
spondent, the A. F. of L., and the Pocketbook Workers Union of New York, herein.
called the Independent.
With respect to the unfair labor practices, the complaint alleged in substance
that : the Respondent did, on or about February 1, 1948, initiate, form, sponsor,.
and promote the Independent ; that since that date it had assisted, dominated,.
contributed to the support of, and interfered with the administration of the
Independent ; and that during the same period, the Respondent has interrogated
its employees concerning their union affiliations, and has urged, persuaded, threat-
ened, and warned them to assist, become members of, or remain members of the
Independent.
1 The General Counsel and the attorneys representing him at the hearing are referred to,
herein as the General Counsel ; the National Labor Relations Board, as the Board.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answer the Respondent denied that it had committed any unfair labor
practices. An answer was also filed by the Independent, in which it denied that
it was initiated, formed, sponsored, assisted, or dominated by the Respondent.
Pursuant to notice, a hearing was held at Syracuse, New York, on June 28,
and July 20 through 23, 1948, before the undersigned Trial Examiner. The
General Counsel, the Respondent, the A. F. of L., and the Independent were
represented by counsel ; the New York Industrial Council by its executive secre-
tary.' Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues, was afforded all parties.
During the hearing, motions of the General Counsel to amend the complaint
were granted without objection. The amendments thus permitted added allega-
tions that: (1) The Respondent had, on or about March 3, 1948, entered into a
contract with the Independent, wherein the latter was recognized as the exclu-
sive bargaining representative of the Respondent's employees, although the
Independent did not at that time represent an uncoerced. majority of the said
employees; (2) The said contract requires membership in the Independent as
a condition of continued employment, which requirement has been enforced,
although no authorization to execute such a contract was ever obtained, as is
required by Sections 8 (a) (3) and 9 (e) of the Act; (3) The said contract
provides for check-off by the Respondent of dues, fines, and assessments for the
Independent, from employees' wages, and such deductions have been made since
execution of the contract. Motions by the Respondent and the Independent to
amend their respective answers so as to include denials of the foregoing added
allegations of the complaint, were also granted without objection. The Inde-
pendent's motion to intervene in the present proceeding, insofar as its interests
would appear, was granted without objection. Upon the basis of a statement of
the General Counsel that he was in effect, abandoning the allegation of the
complaint that the Independent was dominated by the Respondent, and intended
to proceed only on the allegations that the Independent was illegally assisted,
the Respondent's motion, made at the close of the General Counsel's case, to
dismiss the complaint insofar as it alleges that the Respondent has dominated
the Independent, was granted without objection. Motions by the Independent
and the Respondent, made at the close of the General Counsel's case, to dismiss
the complaint in its entirety, were denied, with leave to renew at the close of the
entire case. Opportunity was offered all the parties to file briefs and proposed
findings of fact and conclusions of law. Briefs were received after the close of
the hearing from the General Counsel, counsel for the Respondent, and counsel
for the Independent. Motions to dismiss the complaint are made in the latter
two briefs. These motions are disposed of by the findings, conclusions, and
recommendations hereinafter made.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Julius Resnick, Inc., is a corporation organized under the
laws of the State of New York, with its principal office in the City of New York.
It operates, among other plants, one located in the city of Syracuse, New York,
2 As is more fully set forth below, the New York Industrial Council is a trade association
with which the Respondent is affiliated.
JULIUS RESNICK, INC. 45
wherein it is engaged in the manufacture, sale, and distribution of ladies'
handbags and related products. During a normal year, the Respondent, in the
course and conduct of its operations at the Syracuse plant, purchases raw mate-
rials and supplies consisting principally of imitation leather, plastics, and
rayons, valued in excess of $50,000, of which approximately 25 percent is pur-
chased from sources outside of New York State. It manufacturers and sells
annually, at the Syracuse plant, finished products valued in excess of $100,000,
of which approximately 75 percent is sold to customers outside of New York State.
The Respondent concedes, and I find, that it is engaged in interstate commerce
within the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
International Handbag, Luggage, Belt & Novelty Workers' Union, A. F of L.,
and Pocketbook Workers Union of New York, are labor organizations admitting
to membership employees of the Respondent at its Syracuse plant
III. THE UNFAIR LABOR PRACTICES
A. Background
Until 1938 there was one labor organization, affiliated with the American
Federation of Labor, which represented the bulk of the employees in the ladies'
handbag industry. In that year, as a result of differences in that union, a split
occurred, and the Independent was set up. Thereafter the Independent became
dominant among employees in the plants located in the New York City area, and
the A F. of L. continued to represent most of the workers in the plants in the
rest of the country.
The employers in the industry are organized in a trade association known as
the National Authority for the Ladies Handbag Industry, which, among other
functions, bargains collectively on behalf of its members with the unions repre-
senting their employees. The employers with plants in New York City bargain
through a subdivision of that association, which is known as the New York
Industrial Council of the National Authority for the Ladies' Handbag Industry.
The respondent, which operates a plant in New York City, has been a party for
some years to master-contracts negotiated between the Independent and the
New York Industrial Council.
From 1934 to 1943, the Respondent also operated a plant in Syracuse, New
York, the employees of which were represented by the A. F. of L. with whom the
Respondent executed collective bargaining contracts. In June 1943, the Respond-
ent suspended operations in the Syracuse plant because of war-time conditions.
In March 1946, after these operations had been resumed, the A. F. of L. and
the Respondent again entered into a contract covering the Syracuse employees.
On February 16, 1946, a master-contract between the New York Industrial
Council and the Independent was executed, containing a provision that "sub-
sidiary shops," outside New York City, owned and operated by employers from
that city, be included within the scope of the aforesaid contract. Before agree-
ing to become a party thereto, the Respondent reached an understanding with
the Independent that, since the employees in the Syracuse plant were then
represented by the A. F. of L., the master-contract with the Independent was
to apply only to the Respondent's New York City plant. Thereafter, upon
charges filed by the C. I. 0. in cooperation with the Independent, a Board com-
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint was issued alleging that the contract between the Respondent and the
A. F. of L., covering the Respondent ' s Syracuse plant, had been executed in
violation of the Act . On June 18 , 1947, the Board found that the Respondent
had illegally assisted the A. F. of L. in recruiting members in the Syracuse plant,
and ordered the Respondent to cease giving effect to the contract , and to with-
draw recognition from the A . F. of L . as bargaining representative of the
employees in the Syracuse plant. In that Decision and Order ' the Board's find-
ings of illegal assistance were based primarily upon the pro-A. F. of L. activities
,of two of the Respondent ' s "floor-ladies ," whom the Board found to be super-
visors within the meaning of the Act. The Respondent complied with the
Board's order.
In August or September 1947, following the Board order setting aside the
contract with the A. F. of L., the Independent demanded of the Respondent
that the above -described master-contract between the Independent and the New
York Industrial Council be deemed to apply to the Respondent 's Syracuse plant.
After some discussion between the Respondent , the New York Industrial Council,
.and the Independent , they agreed that with some modifications the aforesaid
master-contract should be made applicable to the Syracuse plant. During
these discussions , however, some apprehension was expressed that charges of
illegal assistance to the Independent might be filed if the Respondent , without
:more, recognized the Independent as collective bargaining representative of the
-employees in the Syracuse plant. An understanding was therefore arrived at
-that the Independent would "organize" the employees in the Syracuse plant, and
obtain authorization to act as their representative , as a preliminary to entering
into a contract with the Respondent with respect to that plant. Thereafter the
Independent "took appropriate steps to organize the employees of the Syracuse
plant." (Quoted from the brief filed by counsel for the Independent p. 9.)
The "appropriate steps" thus taken by the Independent , the Respondent's con-
-duct with respect thereto , and their ultimate execution of an agreement, gave
-rise to the charges filed by the A. F. of L., and to the complaint issued by the
General Counsel , alleging that the Independent had received illegal assistance
from the Respondent . The present proceeding involves the issues raised by
the aforesaid allegations and by the denials thereof by the Respondent and
-the Independent.
B. Sequence of events leading to execution of the contract between the Respond-
ent and the Independent with respect to the Respondent's Syracuse plant
On February 4, 1948, two representatives of the Independent, Secretary-treas-
-urer Lubliner, and General Organizer Feldman, called upon Murray Resnick, the
Respondent's secretary, in the latter's office in the Syracuse plant. Resnick was
.at that time in active charge of the operations of the said plant. They told
Resnick that they wished to see one of the plant employees, Anna Tucci, who
had been shop chairlady of the A. F. of L. during the preceding period when the
Respondent's contract with the A. F. of L. was in effect. At, or within a few
_mintes before, quitting time in the plant (4: 30 p. m.), Resnick had Tucci sum-
moned to his office, where he introduced her to Lubliner and Feldman, and then
left the three alone in the office.' The representatives of the Independent then
' Matter of Julius Resnick, Inc., 74 N. L. R. B. 184.
' The above findings are based on the testimony of Lubliner , Resnick, and Tucci, which
-is in substantial agreement with respect to the above incident . Tucci testified that
Resnick had informed her of the forthcoming visit of Lubliner and Feldman about an hour
?before she was actually summoned to meet them.
JULIUS RESNICK, INC. 47
solicited Tucci's aid in recruiting the employees of the Syracuse plant for that
union. At that point Tucci went back into the plant to ask Floorladies Anita
Lampreda and Pearl Nicoletti to join the group in Resnick's office.5 As is un-
disputed, Lubliner and Feldman thereupon urged upon Tucci, Lampreda, and
Nicoletti the advantages of having the Independent represent the employees
in the Syracuse plant, and besought their cooperation in enlisting members for
the Independent , and in arranging a meeting of the employees for that purpose.'
The next day, during the lunch hour, Tucci, Lampreda, and Nicoletti again
met Lubliner and Feldman, at which time a meeting of the employees for that
evening, under the sponsorship-of the Independent, was arranged.? Lampreda
and Nicoletti admittedly helped to advertise the meeting among the employees.
In addition, the General Counsel contends, Lampreda solicited and obtained the
signatures of a number of employees on Independent application cards. With
respect to this, Tucci testified that she gave Lampreda a quantity of such cards
on February 5, and that during the day Lampreda returned some of these cards
to her, which had been signed by employees. Lampreda denied that she had
ever solicited any employee to sign a card for the Independent, but admitted
that she had been handed some signed cards by employees, which she later gave
to Tucci. She also testified that some employees had asked her to assist them
in filling out the cards, but that she refused to do so, but had instead asked another
employee to "sign it for them." Even on the basis of Lampreda's testimony, it
is clear that she did assist the Independent to get some application cards signed
by employees during the organizational period, if not by direct solicitation, then
at least by asking another employee to assist in having them signed, and by
accepting a number of signed cards from employees to be delivered to the Inde-
pendent. I so find.
The meeting of February 5 was held in a nearby hall after work that day,
and was attended by approximately 80-100 of the Respondent's employees.' Lub-
liner and Feldman made talks soliciting the adherence of the employees to the
Independent ; union application cards were distributed ; and a negotiating com-
mittee was chosen, the names of members being suggested by the employees in
attendance. The committee as constituted included Floorladies Lampreda, Pearl
Nicoletti, Christine Merlino, and Mary Nicoletti.' Lampreda and Merlino raised
" Tucci testified that she did so at the request of Lubliner and Feldman . Lubliner
testified that Tucci suggested calling in "another girl ," and that he assented to the sug-
gestion , not knowing whom Tucci had in mind . In view of subsequent developments I
do not consider it important to decide at whose request Lampreda and Nicoletti were asked
to join the group.
6 Tucci testified that Lampreda and Nicoletti joined the group in Resnick's office, where
the above conversation took place . The testimony of Lubliner , Lampreda , and Nicoletti
Is to the effect that Nicoletti was encountered by the rest of the group as they were
leaving Resnick 's office ; that Feldman then recognized Nicoletti as a former fellow-
employee in a New York shop ; and that it was then that he and Lubliner solicited Nico-
letti's help on behalf of the Independent . I consider the discrepancies in the foregoing
testimony as of little or no significance , and therefore do not deem it necessary to resolve
the conflict.
° Tucci testified that the noon -hour meeting on February 5 took place in Resnick 's office.
Lubliner , Lampreda , and Nicoletti , while agreeing that they did discuss arrangements for
a meeting to be held that evening after work , testified that the discussion occurred near
the plant entrance during the lunch period . I credit the latter. Tucci admitted that she
had left the plant during the lunch hour.
"During the period in question the Respondent employed about 135 workers in its
Syracuse plant.
B Based on the testimony of Lubliner , Tucci, Lampreda , Pearl Nicoletti, and Resnick.
The latter named the floorladies in the Respondent ' s employ.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some objection to their serving on the committee in view of their status as floor-
ladies, but at Lubliner's suggestion finally accepted membership on the com-
mittee for the time being, until Lubliner could "think about it." '0 In the mean-
time, the A. F. of L. sent the following telegram, dated February 6, 1948, to the
Respondent:
INFORMED THAT YOU ARE PERMITTING N. Y.- POCKETBOOK UNION
TO SIGN UP WORKERS IN YOUR PLANT AND ASSISTING THEM TO
DO SO. FURTHER INFORMED THAT YOU INTEND TO SIGN BACK
DOOR CONTRACT WITH THIS NON-COMPLYING UNION. IF TRUE,
THIS IS VIOLATION OF LABOR MANAGEMENT RELATIONS ACT.
DEMAND THAT YOU POST NOTICE AND NOTIFY WORKERS THAT
YOU DISAVOW SUCH ACTION AND THAT THEY ARE FREE TO RE-
MAIN MEMBERS OF A. F. L. OR TO JOIN IT.
On February 11, the negotiating committee chosen at the February 5 meeting,
held a meeting with Lubliner and Feldman. Also in attendance were a number
of additional invited employees. After a discussion regarding the advisability
of including floorladies on the Independent's negotiating committee, another
committee was chosen to replace the former one. No floorladies were included
on the new committee." At this meeting also, demands were formulated to
be presented to the Respondent.
During the day on which the above-described meeting was held (February
11), Lubliner handed to Resnick 101 cards signed by employees, designating
the Independent as their collective bargaining representative. Resnick checked
the cards against the pay-roll of the Syracuse plant and told Lubliner that he
was satisfied that the Independent represented a majority of the employees"
On February 13, the A. F. of L. filed the charges which initiated the present
proceeding. Resnick admittedly learned of the filing of the charges shortly
thereafter. On February 17, the A. F. of L. also sent a letter to the Respondent
in which it reiterated its accusation that the Respondent had illegally assisted
the Independent ; called attention to the fact that the A. F. of L. had filed charges
with the Board; and demanded that the Respondent refrain from entering into
a contract with the Independent.
On February 16, representatives of the Respondent and the Independent (in-
cluding the negotiating committee selected on February 11) met and reached a
tentative agreement on the terms of a contract to apply to the Syracuse plant.
The next day, the terms thus agreed on were discussed at a meeting of employees
called by the Independent, and were approved. On March 3, the employees were
assembled in the plant after working hours, where Lubliner and Resnick ex-
plained the terms of the contract. Resnick then asked the assembled employees
whether or not they "wanted the union," and hearing no one object, thereupon
signed the contract. Lubliner also signed as representative of the
Independent's
It is undisputed that the contract executed on March 3, 1948, between the
Respondent and the Independent, covering the production and maintenance
workers in the Respondent's Syracuse plant, embodied the terms of the master-
contract, dated February 16, 1946, and effective to May 31, 1949, between the
10 Based on the testimony of Lubliner, Lampreda, and Tucci. Merlino did not testify.
11 Based on the testimony of Lubliner, and on the minutes of the February 11 meeting,
which are in evidence.
12 Based on the undenied testimony of Lubliner, Feldman, and Resnick.
la The facts above 'set forth are not in dispute.
JULIUS RESNICK, INC. 49
Independent and the New York Industrial Council, as modified by the provisions
of a "Memorandum Supplementing Contract Now In Force and Effect," which
was the document actually signed on March 3. The agreement thus entered into
includes clauses providing for check-off of union dues and assessments by the
employer from the wages of employees, and union-security provisions reading
as follows :
The Council agrees for itself and in behalf of each and every member
thereof that all of its members will employ and retain in their employ none
but members of the said Union declared to be in good standing, to perform
all the work necessary in connection with the manufacture of the articles
made by or for said member, wherever the shop of the member may be
located.
Whenever workers are required by a member of the Council, such member
shall call upon the Union to furnish said help, and the Union agrees, to the
best of its ability, to endeavor to furnish such workers as the employer
may require, upon notification by the said employer member of the Coun-
cil. . . . In the event that the Union is unable to fill the employer's require-
ments within 48 hours, the employer shall be permitted to select his help
from other sources. The Union agrees to give a working card to all such
workers upon application for affiliation and complying with the Union
requirements. If such worker does not make application for affiliation,
the Union shall have the right to replace such worker with one of its
members equal in skill and ability. Every Union worker shall present a
working card from the Union to the Chairman of the shop upon the com-
mencement of his employment. No worker shall be employed who was
previously a member of the Union and subject to discipline under its rules,
until he has been reinstated in good-standing, and by good-standing is
meant a member of the Union who has complied with all the rules and regu-
lations of the Union.14
C. Concluding findings
The General Counsel points to three categories of illegal assistance allegedly
extended to the Independent by the Respondent. These consist of: (1) The
aid furnished Lubliner and Feldman by Murray Resnick; (2) The participation
by the Respondent's floorladies in the organizational efforts of the Independent;
and (3) the execution of the contract on March 3, 1948, containing alleged illegal
provisions. These contentions may conveniently be discussed in that order.
1. Murray Resnick's assistance to the Independent
Resnick's assistance to the Independent consisted of introducing Tucci to
Lubliner and Feldman, and permitting his office to be used, after working hours,
for a conference between Tucci, Lampreda, Nicoletti, and the representatives
of the Independent, with respect to ways and means of enlisting the Respond-
ent's employees in the Independent. While the assistance thus rendered the
Independent might conceivably be deemed to constitute a technical violation
of Section 8 (a) (2) of the Act, it is, in may view, so insubstantial as to furnish
inadequate basis for a finding of unfair labor practices.16 I shall, therefore,
14 The above provisions are quoted from paragraph 2 of the master-contract.
15 There is no indication in the record that the A. F. of L. at any time material herein
requested the Respondent, or that the Respondent refused, to afford it similar access to
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend that the complaint be dismissed insofar as it alleges that Resnick's
above-described conduct was illegal.
2. The activities of the Respondent's floorladies
Whether or not the Respondent should be held liable for the participation.
of its floorladies in the initial organizational efforts of the Independent, hinges
upon the supervisory or nonsupervisory status of these employees in the Re-
spondent's Syracuse plant. With respect to this issue, the General Counsel calls
attention to the previous Board decision dealing with that plant. In that
decision, as has already been noted, the Board found that the Respondent's
floorladies were supervisors, and consequently held the Respondent answerable
for their pro-A. F. of L. activities." The foregoing decision was based on evidence
taken at a hearing which closed on July 30, 1946. The Respondent, however,
contends that beginning about July or August 1946, the duties of the floorladies
were considerably narrowed, as a result of a more active participation by Murray
Resnick in the management of the Syracuse plant, and that, as a consequence, the
floorladies no longer exercised supervisory authority over employees during the
period herein material.
The only affirmative evidence adduced by the General Counsel in support of his
contention that floorladies were still supervisors (luring the period herein dis-
cussed, was the testimony of employee Tucci. She testified generally that in her
department the floorlady was the one who "usually showed a new girl what to
do"; that when an employee ran out of work she would "usually go to [Floorlady]
Anita [Lampreda] and tell her . . . and she will find something" for the em-
ployee to do ; that the floorlady in her department exercised the power to permit
employees to take time off ; and that on occasions when the employees would
become noisy while at work, the floorlady would admonish them to "quiet down."
Tucci admitted that floorladies did production work "just like the other girls do,"
in addition to bringing work to the employees, and that she had seen employees
other than floorladies showin newlyhired girls how to perform their work.
Tucci, whose testimony with respect to other matters has been relied on to some
extent, specifically testified that during June 1948, she had requested her floor-
lady, Lampreda, for permission to take some time off during working hours ; that
Lampreda gave her such permission ; and that she accordingly left work a half
the Respondent' s employees . As a matter of fact, the record of this case does not, in my
judgment, Indicate any Intent on the part of the Respondent to render illegal assistance
to either of the two unions involved In this case . So far as appears, the Respondent's
relations with both the A. F. of L. and the Independent had been friendly for a number
of years, and I am persuaded that the Respondent entertained no actual preference as to
which of the two, or whether any union for that matter, should represent the employees
of its Syracuse plant. If I were to draw any inference at all as to the Respondent's
motivation, it would be that it wished the question of representation to be settled promptly
one way of the other, so that it and its employees could proceed without further distrac-
tion to manufacture ladies' handbags. It may be that the Respondent, being thus actuated,
engaged in the conduct hereinafter found to contravene the Act, in order to facilitate a
"settlement" of the rival claims of the two contending unions, which were, so far as it was
concerned, prolonging an undesirable situation. Be that as it may, the findings hereinafter
made as to unfair labor practices, are not predicated upon the intent of the Respondent,
but solely upon the conclusion that certain acts of the Respondent were in and of them-
selves, as a matter of law, violative of the Act.
16 It may be noted in passing that in the prior proceeding the Respondent's floorladies
were found to have told employees that "they spoke for management and that membership
in the AFL was a condition of employment" (74 N. L. R. B. at pages 184-185). There is
no evidence in the present record that any such coercive statements were made to employees
by floorladies, or by anyone else on behalf of the Respondent.
JULIUS RESNICK, INC. 51
hour early on the day in question. At first Tucci was unable to recall the day on
which the incident occurred. Later she testified that it happened on June 17,:
1948. After it had been shown that Tucci's time card for that day was punched
out at 4: 30 p. in., the usual quitting hour, Tucci again took the stand and testified
that she had been mistaken in her previous testimony, and that, having since
checked her own records at home, she had ascertained that she had been granted.
a half hour off on June 10, 1948. In view of the witness' confused testimony with.
respect to this matter, I do not feel that any reliance can be placed on it.
The Respondent points to the testimony of Resnick and a number of floor-
ladies and other employees in support of its contentions: Resnick testified: That
from the time that the Respondent reopened its Syracuse plant in the latter part
of 1945, until about March 1946, Resnick made regular weekly visits to Syra-
cuse, staying there during 3 or 4 days each week, and that during his said visits
he took charge of the plant; that in June 1946, he (Resnick) moved his residence
from New York City to Syracuse," and from that time to about May 1948, he was
in daily full-time attendance at the Syracuse plant, and was in active charge of
its operations. Resnick further testified that the Respondent's general offices
in New York City handled the details concerning sales, office records, payment of
wages," and the like, leaving him free to devote himself to active supervision
of production in the plant. He further testified that he was assisted in such
supervision by Seide and Sutphen, two employees who likewise circulated among
the employees on the production floor." He described the duties of floorladies
as consisting only of taking work from one part of the production floor to an-
other ; doing actual production work as the occasion demands ; and teaching new
employees how to perform their operations. With respect to the last-mentioned
duty, Resnick testified that this was not restricted to floorladies, and that any
experienced employee could, and often did, show a newlyhired girl how to do
her work. Resnick denied that during the period covered by the complaint,
floorladies had the power to hire or fire, discipline employees, assign employees
to work-stations or transfer them, promote employees, or effectively to recom-
mend the employment, discharge, or promotion of employees. It is undisputed
that floorladies are paid on an hourly basis, as are the other employees in the
plant.
Floorlady Lampreda testified that while she had exercised some authority
over employees before Murray Resnick took active charge of the plant, "after
Murray [Resnick] got there in July 1946, Murray took over and [she] didn't
have any authority whatsoever then." When asked to state specifically "what
authority was taken away from" her after July 1946, Lampreda testified, "Well,
at that time I could have-if a girl wanted to go home at 4 o'clock, whatever she
wanted, I used to tell her she could. After Murray came there I couldn't very
well because he was there himself and anything -had to get permission from
Murray." She also testified that she had never had authority to "tell a girl to
do their work." When confronted with her testimony in the prior Board hear-
ing, given on July 29, 1946, Lampreda admitted that she at that time exercised
17 During his testimony Resnick seemed to acquiesce several times when counsel men-
tioned July 1946 as the month when he moved to Syracuse. However, in answer to a
specific question as to "when in 1946 " he had come to Syracuse to live, he answered, "I
moved tip here in June of 1946."
" This was corroborated later in the hearing by the testimony of Mercurio , office worker
in the Syracuse plant, who established that the time -cards of the Syracuse employees were
sent to New York where their weekly pay checks were made up.
19 Sutphen , according to Resnick, was primarily concerned with maintenance work, but
in addition , spent some time in supervising production operations.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the right to "see that the girls do their work" ; assign employees to various jobs
in the department ; transfer employees from one job to another; report to uran-
agement with respect to the competence of employees ; and to recommend em-
ployes for wage increases. She testified later that while she had possessed the
foregoing authority "prior to July 29, 1946," she had been deprived of it after
the July 1946 hearing, and that during the period involved in the present hear-
ing, she exercised none of the supervisory powers she had previously had.
Lampreda testified further that the change in the duties and powers of floor-
ladies occurred after Resnick moved to Syracuse and assumed full-time manage-
ment of the plant, which as she recollected, took place some time after she gave
her testimony in the prior hearing on July 29, 1946.
Pearl Nicoletti, who was a floorlady in the Syracuse plant from November
1947, to the time of the hearing herein, and Patrina Piasecke, who became a
floorlady, as she testified, "when Murray [Resnick] moved to Syracuse, the last
part of July or the beginning of August" 1946, testified in substance that their
duties as floorladies consisted of bringing work to the other employees, par-
ticipating in production work, and that they exercised no supervisory powers.
Employee Jennie La Rose, who had worked in the plant since it reopened after
the war, corroborated the foregoing testimony with respect to the duties of floor-
ladies and testified further that she had observed that at some time during her
period of employment, the authority of floorladies was diminished. Since, how-
ever, her testimony is extremely vague and uncertain as to the time when such a
change took place, I feel that I can place no reliance on it. Mercurio, an office
worker in the plant, generally corroborated the testimony of Resnick, Lampreda,
Nicoletti, and Piasecke on the subject of the status of floorladies.
It is evident from the foregoing summary that Tucci's testimony with respect
to the authority of floorladies constitutes the only evidence in the record which
specifically tends to refute the testimony upon which the Respondent relies. I
have found that portion of Tucci's testimony to be unreliable. The only issue
left to be determined, therefore, in connection with this subject, is whether, as
the General Counsel contends, the testimony adduced by the Respondent and the
Independent, is, in the light of the record as a whole, unbelievable.
The position of the General Counsel may be summed up as follows : The Board
has found that the floorladies in the Respondent's Syracuse plant were super-
visors as late as July 30, 1946.20 The testimony adduced in the present hearing,
to the effect that the floorladies were stripped of their supervisory authority some
time after the above date, is vague and incredible. Moreover, argues the Gen-
eral Counsel, there are certain contradictions in Resnick's testimony which
renders it unbelievable. We should, therefore, conclude that there was, in fact,
no essential change in the functions of the floorladies, and that they remained
supervisors within the meaning of the Act throughout the period herein material.
It is true that the witnesses who testified that the floorladies were at some
time prior to February 1948, deprived of supervisory powers, were somewhat
vague as to the time when the change was made. They were uniformly unable
to state the date when this took place, but testified generally that it occurred
some time in July or August 1946, when Murray Resnick moved to Syracuse and
rook over full-time supervision in the plant. I do not view this as a fatal defect
20 I agree with the above contention. As appears from the testimony of Lampreda in
the present hearing, and the Board's decision in the prior proceeding, it is clear that as of
the close of that proceeding on July 30, 1946, the floorladies exercised supervisory
authority.
JULIUS RESNICK, INC. 53
in their testimony. It is not unusual for witnesses to be unable to recollect the
dates of events which occurred 2 years before, but merely to be able to relate
such events to others occurring at about the same time.
With respect to Resnick's testimony, there are certain contradictions con-
tained therein which give rise to serious doubts in my mind. ' Resnick was asked
the following question by the General Counsel: "Has the position of floorlady
and the duties performed by those persons changed between the time that the
prior hearing was held and February of 1948?" After some colloquy, Resnick
answered, "Right. From July 1946, until February 1948, the duties have been
the same." He was then asked whether the duties of floorladies were changed
from March 1946, when he first participated in the management of the plant,
until July 1946. He answered in the negative. Later in the hearing, under
examination by the Respondent's counsel, Resnick testified that shortly after the
July 1946 hearing, he "made [his] home in Syracuse," and assumed personal
charge of the plant. He was then asked to describe the duties of floorladies
from February 1, 1948, to the date of the hearing. In answer to this question,
he testified, in sum, that they possessed no supervisory authority. Still later, in
answer to a specific question as to the date when he moved his residence to Syra-
cuse, Resnick testified, "I moved up here in June of 1946." From that time on,
he further testified, he was in daily attendance at the plant, and in active charge
of its operations.
Assuming, as the Respondent contends, that the floorladies were reduced from
supervisory to nonsupervisory status upon Resnick's assumption of full-time
management of the Syracuse plant, this change must have occurred some time in
June or July 1946, if we are to credit Resnick's testimony as to the date of his
taking full charge of the plant. But as we have seen, the floorladies were
found to be supervisors as late as the end of July 1946, and Lampreda, at least,
admittedly exercised supervisory authority at that time. Moreover, in his earlier
testimony, Resnick testified that no change in the duties of the floorladies took
place from March 1946 to February 1948.
In addition to the foregoing, the record contains certain other indications
that floorladies might still have been supervisory employees during the period
covered by the complaint. Thus, it is undisputed that the floorladies in the
Syracuse plant are excluded from the coverage of the contract entered into
between the Respondent and the Independent. Neither are the floorladies ad-
mitted to membership in the Independent.
I must admit that, in view of the above, I share the suspicion of the General
Counsel as to the validity of the Respondent's contention that the floorladies in
its Syracuse plant are no longer supervisors. However, I cannot base findings
on suspicion. The burden of proving the supervisory status of the floorladies
rests upon the General Counsel; I am constrained to conclude that the evidence
does not sustain his allegations in this respect. The record contains no reliable
affirmative evidence that the floorladies exercised any supervisory functions dur-
ing the period here in issue. At most, it casts some doubt on the testimony that
a change took place in the status of these employees after July 1946. In these
circumstances, I am impelled to give the benefit of the doubt to the Respondent,
and to credit the testimony of Resnick, Lampreda, Nicoletti, Piasecke, and Mer-
curio, that the floorladies in the Respondent's Syracuse plant, during the period
from February 1, 1948, to the date of the hearing herein, performed only the
duties of rank and file production workers, and in addition, carried work to and
from the other employees, and on occasion, in common with other experienced
867351-50--vol. 86-6
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, instructed new workers how to perform their operations. The con-
clusion follows, and I find, that these floorladies were not supervisors within the
meaning of the Act during the time herein material. I further conclude and
find that the Respondent did not illegally assist the Independent by the activities
of its floorladies on behalf of the Independent during the organizational cam-
paign of that union among the Respondent's Syracuse employees in February
1948.
3. Illegal provisions in the contract between the Independent and the Respondent
Certain provisions of the contract between the Respondent and the Inde-
pendent, entered into on March 3, 1.948, with respect to the Syracuse plant, have
been above set forth. Quite plainly these portions of the contract require the
Respondent to employ and retain in its employ only members of the Independent
in good standing. In addition, the Respondent agreed to deduct from the wages
of employees, dues and assessments of the Independent. If the union-security
provisions above referred to, be construed to constitute a "closed shop" arrange-
ment, it is of course illegal under the provisions of Section 8 (a) (3) of the Act.
If they constitute merely a "union shop" arrangement, as the Independent in its
brief seems to contend, they are similarly in violation of the Act, since, as is
conceded, no union shop election had been held, prior to execution of the contract,
as is required by Sections 8 (a) (3) and 9 (e) of the Act. The agreement that
the employer "check-off" union dues and assessments is likewise plainly in viola-
tion of the Act, because the said agreement is not conditioned upon the receipt by
the employer of "a written assignment" from each employee, as is required by
Section 302 (c) (4) of the Act."
The contentions of the Respondent and the Independent that the union-security
clauses of the contract have not been enforced, and that individual authorizations
were in fact secured from employees before any check-off of union fees was made,
are not disputed. Nevertheless, the execution of such illegal agreements, even
though they were not enforced, constitutes, on the part of the Respondent, inter-
ference with, restraint, and coercion of its employees in the exercise of the rights
guaranteed in Section 7 of the Act zz
I conclude and find, therefore, that by executing a contract with the Independ-
ent on March 3, 1948, which requires membership in the Independent as a condi-
tion of employment in the Respondent's Syracuse plant, and which requires the
Respondent to deduct from employees' wages, and pay to the Independent, dues
and assessments levied by the Independent, the Respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act, thereby committing unfair labor practices as defined in
Section 8 (a) (1) of the Act.
n The contract between the parties contains, in addition, a clause which, on its face,
appears to be in clear violation of Section 8 (a) (3) of the Act. I refer to paragraph 7 of
the ''Memorandum Supplementing Contract," which was executed on March 3, 1948. In
brief, this paragraph provides for a wage increase to go into effect upon signing of the
agreement, such increase to be restricted to members of the Independent among the
Respondent's employees. However, I shall not pass upon the legality of this provision,
since no issue as to its validity was raised by the pleadings, nor litigated at any stage of
the hearing.
22 Cf. Matter of Palmier Frnit Co., 51 N. L. R. B. 924, 925: hotter of Worthington
Creamery and Produce Co., 52 N. L. It. B. 121. 122: Matter of I'lotill Prodacts, Inc.. 70
N. L. R. B. 119. 122: lfatter of C. 11'. flame. Co.. 71 N. L. R. B. 533. 534. And see the
specific language of the Board decision in .lfotter of C. Hager it Soots Hinge illan ofactarmnq
Co., 80 N. L. R. B. 163 (Case No. 14-RC-S, decided November 9, 1948).
JULIUS RESNICK, INC.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
55
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor
practices, I shall recommend that it cease and desist therefrom, and take certain
affirmative action in order to effectuate the policies of the Act.
I have found that by entering into an agreement with the Independent con-
taining certain illegal provisions, the Respondent has committed unfair labor
practices within the meaning of Section 8 (a) (1) of the Act. I shall therefore
recommend that it cease and desist from such, or any like or related conduct ;
that it cease and desist from enforcing those provisions of the contract found
to be illegal ; and that it post notices to its employees informing them of the
foregoing."
I am not persuaded that it would effectuate the purposes and policies of the Act
to nullify the entire contract between the Respondent and the Independent,
and to leave the employees of the Respondent without any collective bargaining
contract. In reaching that conclusion, I am not unmindful of the Board's de-
cision in Matter of C. Hager and Sons Hinge Manufacturing Co., supra, which
held that a contract containing illegal provisions such as are herein involved, is
not a bar to the raising of a question of representation. This would appear to
indicate that the-Board considers the entire contract to be tainted with illegality
in such cases. It is not clear, however, that the Board would wish to apply such
reasoning in framing its remedy in an unfair labor practices case. This seems
to be unnecessary, in the light of the Hager decision, since, if the employees
of the Respondent herein desire to do so, they are now free to petition the
Board for certification of some collective bargaining representative other than
the Independent.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Handbag, Luggage, Belt & Novelty Workers' Union, A. F. of L.,
and Pocketbook Workers Union of New York, are labor organizations within
the meaning of Section 2 (5) of the Act.
2. 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,
and is engaging in, unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (2) or Section 8 (a) (3) of the Act, nor in any of the ways
xa Even though the parties are not currently enforcing the invalid portions of the contract,
I think it necessary , in order to effectuate the preventive purposes of the Act , to recommend
an order such as is above mentioned.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged in the complaint except by entering into the contract provisions herein
found to be illegal.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, I
recomend that the Respondent, Julius Resnick, Inc., Syracuse, New York, and
its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Entering into, renewing, or enforcing any agreement with Pocketbook
Workers Union of New York or any other labor organization, which requires its
employees to join, or maintain their membership in, such labor organization, as a
condition of employment, unless such an agreement has been authorized as
provided by the National Labor Relations Act as amended ;
(b) Entering into, renewing, or enforcing any agreement with Pocketbook
Workers Union of New York or any other labor organization which requires it
to deduct from employees' wages, and to pay over to such labor organization,
any dues, fines, or assessments levied by such labor organization, unless written
authorization for such deductions has first been given the Respondent by each
employee so affected ;
(c) In any like or related manner interfering with, restraining, or coercing
its employees at its Syracuse plant, in the exercise of the right to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, as guaranteed in Section 7 of the Act ;
2. Take the following affirmative action, which I find will effectuate the
policies of the Act :
(a) Set aside those clauses of the contract between itself and Pocketbook
Workers Union of New York, which require its Syracuse employees to join, or
maintain their membership in, Pocketbook Workers Union of New York, as a
condition of employment, and which require it to deduct from the wages of
employees, and pay over to the said labor organization, dues, fines, or assessments
levied by such labor organization ;
(b) Post at its plant at Syracuse, New York, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Third Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for a period of sixty (60) consecutive days
thereafter, in conspicous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any other mate-
rial ; and
(c) Notify the' Regional Director for the Third Region in writing within
twenty (20) days from the date of this Intermediate Report, what steps the
Respondent has taken to comply therewith.
It is also recommended that the complaint be dismissed insofar as it alleges
that the Respondent committed unfair labor practices by assisting, sponsoring,
promoting, and contributing to the support of the Independent; by interfering
with the administration thereof ; by interrogating its employees concerning their
union affiliations ; by urging, persuading, threatening, and warning them to
JULIUS RESNICK, INC. 57
assist, become members of, or remain members of the Independent;" and by
enforcing the contract between itself and the Independent.
It is further recommended that, unless the Respondent shall within twenty (20)
days from the receipt of this Intermediate Report notify the aforesaid Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Rochambeau Building, Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report and Recommended Order or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in support thereof; and any
party may, within the same period, file an original and six copies of a brief in
support of the Intermediate Report and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing
the same shall serve a copy thereof upon each of the other parties. Statements of
exceptions and briefs shall designate by precise citation the portions of the rec-
ord relied upon and shall be legibly printed or mimeographed, and if mimeo-
graphed shall be double spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said Section 203.46 should any party desire permission
to argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring
the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings , conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 28th day of February 1949.
ISADORE GREENBERG,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Act, we hereby notify our employees that:
WE WILL NOT enter into, renew, or enforce any agreement with PocxET-
BOOK WORKERS UNION OF NEW YORK or any other labor organization, which
requires our employees to join, or maintain their membership in, such
labor organization, as a condition of employment, unless such an agreement
has been authorized, as provided by the National Labor Relations Act as
"Except , of course , insofar as the Respondent , by entering into the agreement with the
Independent , may be deemed thereby to have assisted it, or urged , persuaded , threatened,
and warned its employees to join and remain members thereof.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended, or which requires us to deduct from our employees ' wages, and
to pay over to such labor organization , any dues, fines , or assessments levied
by it, unless written authorization to do so has first been given us by each
employee so affected.
Wa wu.L NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization, to
form labor organizations , to join or assist any labor organization , to bargain
collectively through representatives of their own choosing , and to engage
in concerted activities for the purposes of collective bargaining , or other
mutual aid or protection , or to refrain from any or all of such activities, as
guaranteed in Section 7 of the National Labor Relations Act as amended.
JULIUS RaSNICI{, INC.,
Employer.
By --------------------------
. (Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.