Laura Modes Co.

National Labor Relations Board - Board Decisions

Nov 15, 1963

144 N.L.R.B. 1592 (N.L.R.B. 1963)

1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as authorized in Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL execute the agreement reached by us and the negotiator of the
aforesaid Union on or about May 18, 1962, and in all other respects will, upon
request, bargain with the aforesaid Union as the exclusive representative of
all employees in the appropriate unit described below, with respect to rates of
pay, wages, hours of employment, and other terms and conditions of employ-
ment, and embody in a signed agreement any understanding reached. The
bargaining unit is:
All production and maintenance employees at our Los Angeles, Cali-
fornia, plant, excluding clerical employees, watchmen, guards, professional
employees, truckdrivers, upholsterers, and all supervisors as defined in
the Act.
All our employees are free to become, remain, or to refrain from becoming or
remaining, members in the above-named or any other labor organization.
AARON NEWMAN, DANIEL NEWMAN, PAUL NEWMAN
AND CARL NEWMAN, A PARTNERSHIP D/B/A
COLONY FURNITURE COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849
South Broadway, Los Angeles 14, California, Telephone No. Richmond 9-4711,
Extension 1031, if they have any question concerning this notice or compliance with
its provisions.
Herbert Bernstein , Alan Bernstein , Laura Bernstein, a co-
partnership d/b/a Laura Modes Company and District 65,
Retail , Wholesale and Department Store Union , AFL-CIO.
Case No. 2-CA-8774. November 15, 1963
DECISION AND ORDER
On January 17, 1963, Trial Examiner Morton D. Friedman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondents and the General Coun-
sel filed exceptions to the Intermediate Report together with support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings of facts and the conclusions and
144 NLRB No. 148.
LAURA MODES COMPANY 1593
recommendations of the Trial Examiner to the extent consistent with
the modifications hereinafter set forth.
The facts, set forth more fully in the Intermediate Report, are
briefly as follows: By August 13, 1962, all of Respondents' five stock
and shipping employees, an appropriate unit, had authorized the
Union to represent them for purposes of collective bargaining. On
that date the Respondents knew by direct interrogation of the indi-
vidual employees that each desired the Union to represent him. At
the same time the Union demanded recognition and asked that an
appointment be made for contract negotiations. Respondent Herbert
Bernstein asked for a day or two to seek advice from his attorney. The
Union agreed to this delay. At noon, on August 14, Respondents
called a meeting of these employees, expressed sharp displeasure with
the action of the employees in affiliating with the Union, requested the
,employees to withdraw from the Union, and indicated there would
be a further meeting later in the day to determine whether the em-
ployees persisted in their union adherence or wished to withdraw. In
response to a question of a union adherent during the meeting, Re-
spondent Alan Bernstein stated that he did "not intend to make contact
with the Union the next day or any day thereafter."
Apprised of the meeting by a telephone call from one of Respond-
ents' employees, the Union sent Business Agent Levine to the plant "to
bolster their morale." Levine arrived at the plant with eight union
members. The eight men stood in the hallway outside the Respond-
ents' office while Levine proceeded, without permission, to the rear of
the plant where the employees were at work. Not knowing the identity
of Levine or any of his men, Respondent Alan Bernstein asked what
they were doing there. Levine responded that they were going to
talk to the employees. Respondent Herbert Bernstein objected on the
ground that the men were at work and said he was going to call his
lawyer. He picked up a telephone, whereupon one of Levine's group
seized the telephone and struck Herbert in the face. Herbert called to
Mrs. Leshne, an office employee, to call the police. When she attempted
to make the call, she too was "pushed around." There was further
punching of Herbert, who finally managed to place a call to the
police. In the meanwhile Levine returned and ordered his adherents
to stop the fracas, stating that the Union "did not want any of that
sort of thing."' As the call to the police went through, he and his
followers rushed out of the plant.
About 5:30 that afternoon another meeting was held by the Re-
spondents. Again Respondents asked the employees to forget about
the Union, promising that there would be no reprisals if they did so.
In the alternative, Respondents stated that Respondents could endure
a strike, but the employees would starve; that if they signed with the
Union there would be a basic work force of only two employees; and
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there would be layoffs and the laid-off employees would get, at
most, 35 weeks of work per year. Respondent Herbert Bernstein said
that, though he might sign with another union, he would never sign
with District 65. Despite Respondents' efforts, each employee, when
asked, remained committed to the Union.
On the morning of August 15, agents of the Union again visited
Respondents' premises and told Respondents Alan and Herbert Bern-
stein that they were there to make an appointment. No appointment
was made and one of the Respondents stated that he would never
negotiate. The union agents left, and one of them thereafter went
to the Board's offices and filed the instant charges. Respondents' at-
torney, Russakow, contacted the Union and asked for the delay of a
mediation board meeting that the Union had arranged for Thursday.
However, Russakow subsequently refused to meet with the Union
either on that day or the next day, a Friday, during which he said he
had several engagements, including a golfing appointment. These
facts were reported to the employees at a union meeting on the evening
of August 16. The employees, who had theretofore refrained from
striking at the Union's suggestion that they await the attorney's re-
sponse, voted to strike immediately. They established a picket line in
front of Respondents' premises the following day.
While the strike was in progress, on August 24, striker-employee
Lewis followed Respondent Alan Bernstein as the latter left the plant
premises and pointed him out to four men, who thereupon proceeded
to beat Bernstein.
On August 28, Respondents filed charges with the Board alleging
the Union's violation of Section 8(b) (1) (A) of the Act because of
the August 14 assaults and certain additional alleged acts of violence
and misconduct during the strike.
On September 20, the General Counsel issued separate complaints
against Respondents and against the Union based on the charges and
countercharges respectively filed by each, and noticed each complaint
for hearing. However, on October 29, before the opening of the
hearing in this case, Respondents, the Union, and the General Counsel
entered into a settlement agreement of the 8 (b) (1) (A) charges against
the Union, whereby the Union agreed to refrain from committing
any acts of the nature incorporated in the charges and to post appro-
priate notices. The Regional Director approved the settlement on
November 5, 1962, and withdrew the complaint against the Union.
We are administratively advised that the Union has fully complied
with the terms and that there has been no recurrence of objectionable
conduct.
The principal issues presented on these facts are whether, as alleged
in the complaint, the Respondents acted in derogation of their statu-
LAURA MODES COMPANY 1595
tory obligations by failing to recognize the Union and by refusing to
meet and to negotiate with it; and, if so, whether, nonetheless, we
should withhold all or a portion of the remedies normally called for
by such violations because of the Union's violence.
Focusing solely on the events preceding the Union's reprehensible
assaults on Herbert Bernstein and his secretary, we find, in the Re-
spondents' statements to its employees, the clear indicia of a state of
mind opposed to the collective-bargaining principle and an unwilling-
ness to recognize the statutory rights of its employees to engage in
collective bargaining. We deem it clear that certain of Respondents'
actions at this point of time, namely, their questioning of individual
employees Aggie and Bethel and their affirmative solicitation of their
employees' withdrawal of union affiliation, suffices in the context of
their demonstrated hostile mood and their expressed preference for
nonunion dealings, to warrant findings that the Respondents thereby
violated Section 8 (a) (1) of the Act. We so find. While the Re-
spondents claim that, nevertheless, they would not have persisted in
withholding recognition of the Union if their employees adhered to
their affiliation with it in opposition to Respondents' wishes, the record
does not support this claim. All the objective facts point, rather, to
the existence of a classic situation in which an employer uses delaying
tactics when faced with a union demand for lawful recognition so as
to gain time in which to undermine the union's majority status and
thus to frustrate its employees' organizational aims. We find, accord-
ingly, as did the Trial Examiner, that the Respondents were deter-
mined not to grant the Union voluntary recognition and that its failure
so to do upon demand, in the circumstances outlined, was in violation
of 8 (a) (5) of the Act.
But our finding that the Respondents acted unlawfully prior to the
Union's misconduct is not to be taken as condonation of the Union's
subsequent resort to or sanction of violent acts in furtherance of its
demand that the Respondents immediately recognize and bargain
with it. An atmosphere of violence and intimidation can hardly be
expected to produce Respondents' participation in reasoned discussion
with union agents about the subjects of collective bargaining. How-
ever, it does not follow that the Respondents were free to threaten
their employees with reprisals because of their affiliation with or their
adherence to the Union. We find that by so doing during the meetings
held by the Bernsteins with the employees on the afternoon of Au-
gust 14 and 15, Respondents further violated Section 8(a) (1) of the
Act. Nor were they justified in telling their employees, as they did,
that they would "never" bargain with the Union. For the Union's
misconduct did not extinguish the employees' rights to bargain
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through the Union.' We further find, accordingly, that by threaten-
ing their employees with reprisals because of their affiliation with the
Union and by announcing to them that their continued adherence to
it would be a futile act as the Respondents would never recognize
the Union, Respondents further violated Section 8(a) (1) of the Act.
Respondents' unlawful conduct in derogation of its employees'
Section 7 rights was clearly a contributing cause of the strike which
began on August 17. We shall therefore adopt the Trial Examiner's
recommendation that the Respondents reinstate each of them-except
Lewis-upon request, to former or substantially equivalent positions,
and that it cease and desist from action in derogation of their Section
7 rights.
We do not, however, deem it appropriate to give the Charging
Union the benefit of our normal affirmative bargaining order in the
circumstances of this case. For we cannot, in good conscience, disre-
gard the fact that, immediately before and immediately after it filed
the instant charges, the Union evidenced a total disinterest in enforc-
ing its representation rights through the peaceful legal process pro-
vided by the Act in that it resorted to and/or encouraged the use of
violent tactics to compel their grant. Our powers to effectuate the
statutory policy need not, we think, be exercised so single-mindedly
in aiming for remedial restoration of the status quo ante, that we must
disregard or sanction thereby union enforcement of an employer's
mandatory bargaining duty by unprovoked and irresponsible physical
assaults of the nature involved here. We recognize of course that the
employees' right to choose the Union as their representative survives
the Union's misconduct. But we believe it will not prejudice the em-
ployees unduly to ask that they demonstrate their desires anew in an
atmosphere free of any possible trace of coercion. Our order here and
the voluntary agreement of the Union, as part of its October 29, 1962,
settlement of the 8(b) (1) (A) charges filed against it, to refrain from
any and all misconduct of the kind mentioned in the charges, will,
we believe, afford the employees with the desirable conditions for
making their free choice. We conclude that, in the particular cir-
cumstances of this case, the policies of the Act and the legitimate
interests of the public and the parties will best be served by denying
to the Union the right to invoke our statutory processes in aid of a
demand for recognition as bargaining representative of Respondents'
employees unless and until it demonstrates its majority among those
employees through the Board's election procedures.
I See N L .R B. v. Remington Rand, Inc., 94 F 2d 862 (C.A. 2) ; Kohler Co., 128 NLRB
1062, enforced in this respect sub nom. Local 833, International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America v. N.L R B., 300 F. 2d 699
(CAD C.). These cases make it clear that although a union which is a freely chosen
majority representative engages in misconduct , such misdeeds do not operate either to
disqualify it from lawfully pursuing its representation rights or preclude the employees
from choosing to bargain lawfully through it.
LAURA MODES COMPANY
ORDER
1597
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Herbert Bern-
stein, Alan Bernstein, Laura Bernstein, a copartnership d/b/a Laura
Modes Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating their employees concerning union affiliation and
activities in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1) of the Act.
(b) Threatening their employees with reprisals because of their
affiliation with or adherence to District 65, Retail, Wholesale and
Department Store Union, AFL-CIO, or any other labor organization
of their choice.
(c) Soliciting their employees to withdraw any designation of
District 65, Retail, Wholesale and Department Store Union, AFL-
CIO, as their collective-bargaining representative.
(d) Telling their employees that Respondents would never grant
them the benefits of collective bargaining if they sought to secure them
through District 65, Retail, Wholesale and Department Store Union,
AFL-CIO.
(e) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist any labor organiza-
tion, to bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refrain
from engaging in such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Section
8 (a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon application, offer to Harold C. Davis, Carlos Santiago,
Lorence E. Bethel, and James Aggie reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy," dismissing if
necessary any employees hired to replace them, and make each of them
whole for any loss of pay suffered by him as a result of the Respond-
ents' failure to reinstate him within 5 days after his unconditional
application.
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security payment records, timecards, personnel records and reports,
and all other records necessary and appropriate to facilitate the check-
ing of the amounts of backpay due and the reinstatement rights of the
above-named employees.
(c) Post at its premises in New York City, copies of the attached
notice marked "Appendix." 2 Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being duly
signed by an authorized representative of the Respondents, be posted
by them immediately upon receipt thereof, and be maintained by them
for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to their employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of receipt of this Decision and Order,
what steps Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that all other allegations of the complaint
as to which no specific findings of violations have been made be, and
they hereby are, dismissed.
a In the event that this Order is enforced by a decree of a United States Court of
Appeals , the words "A Decree of the United States Court of Appeals , Enforcing an Order"
shall be substituted for the words "A Decision and Order."
APPENDIX
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, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning union af-
filiation or activities in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT threaten our employees with reprisals because of
their affiliation with or adherence to District 65, Retail, Wholesale
and Department Store Union, AFL-CIO, or any other labor or-
ganization of their choice.
WE WILL NOT solicit our employees to withdraw any designation
of District 65, Retail, Wholesale and Department Store Union,
AFL-CIO, as their collective-bargaining representative.
WE WILL NOT tell our employees that Respondents would never
grant them the benefits of collective bargaining if they sought to
secure them through District 65, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO.
WE WILL offer to the employees listed below, upon their uncon-
ditional application, reinstatement to their former or substantially
LAURA MODES COMPANY 1599
equivalent positions without prejudice to their seniority and other
rights and privileges , dismissing if necessary any employees hired
to replace them, and we will make each employee whole for any
loss of pay suffered by him as a result of our failure to reinstate
him within 5 days after his application.
Harold C. Davis Lorence E. Bethel
Carlos Santiago James Aggie
WE WILL NOT engage in any like or related acts or conduct in-
terfering with, restraining , or coercing our employees in the
exercise of their right to self-organization , to form labor organi-
zations, to join or assist any labor organization , to bargain
collectively through representatives of their own choosing, or to
engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection as guaranteed by
Section 7 of the Act , or to refrain from any and all such activities,
except to the extent -that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment , as authorized by Section 8(a) (3) of the Act, as
modified by the Labor -Management Reporting and Disclosure
Act of 1959.
All our employees are free to become, remain , or refrain from be-
coming or remaining , members of District 65, Retail , Wholesale and
Department Store Union , AFL-CIO, or of any other labor organiza-
tion, except to the extent that such right may be affected br an agree-
ment in conformity with Section 8 (a) (3) of the Act, as amended.
HERBERT BERNSTEIN , ALAN BERNSTEIN, LAURA
BERNSTEIN , A COPARTNERSIIIP D/B/A LAURA
MODES COMPANY,
E, mmployer.
Dated-- -------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered , defaced, or covered by any
other material.
Employees may communicate directly with the Board 's Regional
Office, Squibb Building , 745 Fifth Avenue, New York 22 , New York,
Telephone No. 751-5500 , if they have any question concerning this
notice or compliance with its provisions.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed August 15, 1962, by District 65, Retail, Wholesale and De-
partment Store Union, AFL-CIO, herein called the Union, and an amended charge
filed August 22, 1962, the General Counsel of the National Labor Relations Board,
herein called the Board, by the Regional Director for the Second Region, issued his
complaint dated September 20, 1962, against Herbert Bernstein, Alan Bernstein,
Laura Bernstein, a copartnership d/b/a Laura Modes Company, herein collectively
called the Respondent, alleging that the Respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (5) and Section 2(6) and (7) of the National Labor Relations Act (61 Stat. 136),
herein called the Act. The Respondent's answer to the complaint denies the allega-
tions of statutory violations therein. Copies of the complaint, the charges, and a
notice of hearing were duly served upon all of the parties.
Pursuant to notice, a hearing was held at New York City between November 5
and 8, 1962, inclusive, before Trial Examiner Morton D. Friedman. All parties
were represented by counsel. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence was afforded all parties. After the close
of the hearing counsel for the Respondent filed a brief. Counsel for all parties made
oral argument at the close of the hearing. The brief and the oral arguments have been
duly considered.
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, a copartnership composed of Herbert Bernstein, Alan Bernstein,
and Laura Bernstein, doing business under the trade name and style of Laura Modes
Company, maintains its office and place of business in the city of New York, where
it is, and has been at all times material, engaged in the sale and distribution at
wholesale of artificial flowers, novelties, and related products. During the year
immediately preceding the filing of the complaint herein, a representative period,
Respondent, in the course and conduct of its business operations, sold and distributed
products valued in excess of $50,000, of which products valued in excess of $50,000
were shipped from its place of business in New York City in interstate commerce di-
rectly to States of the United States other than New York.
Accordingly, I find the Respondent is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this
proceeding.
H. THE LABOR ORGANIZATION INVOLVED
District 65, Retail, Wholesale and Department Store Union, AFL-CIO , is a labor
organization admitting to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges that the Respondent violated Section 8(a) (5) and (1) of the
Act in that the Union, which represents a majority of Respondent's employees in a
unit comprising all of the Respondent's stock and shipping employees, requested the
Respondent to recognize and bargain with it; that the Respondent wrongfully refused
to recognize or bargain with the Union; and that immediately following the Union's
request, the Respondent, by its partners and others, wrongfully interrogated its em-
polyees regarding their union activity and affiliation, threatened its employees with
reprisals, and offered and promised them rewards and benefits to induce them to
abandon their membership and activity on behalf of the Union, all for the purpose
of undermining the Union and destroying its majority status.
i Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least In part, upon his demeanor
as I observed It at the time the testimony was given. Cf. Bryan Brothers Packing Com-
pany, 129 NLRB 285. To the extent that I Indicate hereafter that I reject in part or en-
tirely the testimony of any given witness, it Is my intent thereby to indicate that such part
or whole of the testimony, as the case may be, is discredited by me Jackson Maintenance
Corporation, 126 NLRB 115, 117, footnote 1
LAURA MODES COMPANY 1601
The answer generally denies Respondent's commission of any conduct violative of
Section 8(a) (5) and (1) of the Act and affirmatively pleads that after the Respondent
made free-speech addresses to its employees, the Union physically assaulted the Re-
spondent's principals and employees; that thereafter the Respondent lawfully refused
to meet and bargain with the Union because of the Union's violent tactics and because,
by reason of the violence, the Respondent doubted in good faith that the Union
represented an uncoerced majority of the employees in an appropriate unit?
B. The refusal to bargain
1. The appropriate unit; the Union's majority status
The complaint alleges that all stock and shipping employees of the Respondent at
its New York City facility, excluding office clerical employees, guards, watchmen,
professional employees, and supervisors constitute a unit appropriate for the purposes
of collective bargaining within the meaning of the Act. Although the Respondent's
answer denies knowledge or information sufficient to form a belief as to the ap-
propriateness of the alleged unit, the Respondent did not introduce any evidence to
show that such a unit was inappropriate.
The Respondent, being in the wholesale business, employs no other employees
aside from the shipping and stock employees above mentioned, office help, and
salesmen. Inasmuch as the Respondent has offered nothing to show that a unit
comprising the stock and shipping employees is inappropriate, and because such units
are presumptively appropriate, I find that the unit above set forth is an appropriate unit
within the meaning of Section 9(b) of the Act .3
The General Counsel contends that the following individuals should be excluded
from the unit found appropriate: (1) Jean Leshne, the sister of Laura Bernstein and
the aunt of the other two partners of the Respondent; (2) Joseph Abromowitz, a
former salesman; (3) Ted Daniels, a salesman; (4) Victor Figueroa, who the
General Counsel contends is a supervisor; and (5) Melvin Pasternack, a cousin of
the Bernsteins, who the General Counsel claims was only a temporary summer
employee and therefore is not properly included in the unit.
Although Ted Daniels occasionally works in the warehouse area performing work
similar to the stock and shipping employees, the record establishes that he is primarily
engaged in sales work away from New York City.4 Accordingly, as his work and
interests are almost entirely divorced from those of employees in the unit, he is
excluded therefrom 5
Jean Leshne, as heretofore stated, is the aunt to two of the partners of Respondent
and a sister to the third. Although Respondent contends that Leshne spends a good
part of her working time performing order picking as do the employees included
in the unit, Herbert Bernstein admitted that since June 1962, the Respondent has
had no bookkeeper and that Leshne, though not trained as a bookkeeper, has been
doing the necessary posting to keep the Respondent's books up to date. Bernstein
also admitted that Leshne does reordering of merchandise. Bernstein further testified
that when both the Bernsteins are away on selling trips, it is Leshne who is "in
charge" and with whom they keep in contact for daily reports on the operation of
the office and warehouse.
Employees Arthur J. Lewis and Carlos Santiago testified credibly and without
contradiction, that when each was hired he was interviewed and hired by Leshne
and neither met either of the Bernsteins until after working for some time for the
Respondent. Accordingly, by reason of her blood relationship to the Bernsteins, the
fact that she interviews and hires, even though on consultation with the Bernsteins,
2 The answer also alleges affirmatively that by reason of this violence and alleged later
violence on a picket line established by the Union, the Respondent was excused from bar-
gaining because the conduct of the Union constituted violations of 8(b) (1) (A) of the Act,
being a device to force the Respondent to bargain with it without a proper determination
of the majority issue. Because the alleged picket line violence and misconduct occurred
after the Respondent refused to meet and bargain with the Union, I refused to permit the
Respondent to introduce evidence with regard thereto and rejected the Respondent' s offer
of proof thereon Moreover, as stipulated at the hearing, the Respondent filed an
8(b) (1) (A) charge based on the alleged picketing misconduct which charges were dis-
posed of by bilateral, settlement in which the Respondent participated. I did , however,
receive testimony regarding picket line activity of two employees to assist in determining
their right to reinstatement.
3 Newark Electronics Co., Inc., 131 NLRB 553.
4 From the credited testimony of Herbert Bernstein.
r See Newark Electronics Co., Inc., footnote 3, supra.
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that she posts the Respondent's books and performs other office clerical
work and acts as the source of business information to the Bernsteins when they
are away from New York, I find without determining whether Leshne is a super-
visor, that she is an employee so closely allied with management that her exclusion
from the unit is mandatory.6
Until July 1, 1962, Joseph Abromowitz was an outside salesman. According to
Herbert Bernstein, because Abromowitz was not able to bring in sufficient business
to warrant his being on the road and because the Respondent had production prob-
lems in the warehouse and office, Abromowitz was assigned permanently to the
New York facility where he works at receiving, packing, checking, invoicing, and
crating. However, Bernstein admitted that the Respondent continued to pay Abromo-
witz a salary of $150 per week, about three times as much as the average pay of
the unit employees. Bernstein further admitted that if business warrants they would
probably send Abromowitz back on the road. Moreover, although Bernstein denied
that Abromowitz was in direct line of responsibility with regard to supervising the
shop when the Bernsteins were away, he ultimately admitted that in his affidavit
given to the General Counsel in the investigatory stages of this proceeding, he stated
that Abromowitz was third in line in the hierarchy with regard to the authority to
direct the activities of the facility. Only Jean Leshne or Victor Figueroa would be
in charge ahead of him. Although Bernstein sought to explain this by stating that
every employee can be in charge of the shop at one time or another because they
were all trusted, I do not believe that Bernstein meant that any of the ordinary rank-
and-file employees could direct the activities of the shop as completely as could
Leshne, Abromowitz, or Figueroa. Accordingly, by reason of the tremendous dif-
ference in the salary paid to Abromowitz as compared to those of the unit employees
and by reason of the admissions that Abromowitz was high in the hierarchy of the
shop and also would probably go back on the road when business becomes better, I
conclude that Abromowitz is a supervisor within the meaning of the Act. I cannot
believe that, despite Herbert Bernstein's statement to the effect that Abromowitz is
paid $150 a week because he is worth three times the amount paid to the ordinary
rank-and-file employee in the unit, the Respondent would pay a mere picker and
packer that sum of money.
The case of Victor Figueroa is somewhat more complicated. Although each of
the rank-and-file employees, Davis, Lewis, Santiago, Bethel, and Aggie testified that
Victor was "in charge" of the warehouse operations in the back, the Respondent
steadfastly denied this. The record shows, according to Bernstein's own admissions,
that Figueroa was paid $75 a week as compared to Santiago's $72.50 per week.
Figueroa is the most senior employee and Santiago is the next senior employee. The
men also testified that Figueroa assigned the men their work and at times told them
how to do it. However, Herbert Bernstein insisted and Davis admitted, that he also
gave the men assignments and told men how to perform their work. But Bernstein
also admitted, on cross-examination, that he signed a statement to the effect that
Figueroa was second or third in the hierarchy with regard to the person to be in
charge in the absence of the Bernsteins . I also note that Bernstein never included
Figueroa as a rank-and-file employee when he interrogated employees as to their
union membership and, in fact, had Figueroa assisting in trying to dissuade the men
from union membership. I further note that Bernstein also testified that during
the organizing period the men failed to obey Figueroa's orders. Accordingly, I find
on all the evidence that Figueroa is a supervisor and should be excluded from the
unit.?
Although Davis testified that Pasternack told him that shortly after he came to
work in late July or early August 1962 that he was only a summer employee, and
although Pasternack admitted that when he first came to work for Respondent at
that time he came as a summer employee, the Respondent contends, and Herbert
Bernstein and Pasternack both testified to the effect that Pasternack would have
remained on as a part-time employee even though he returned to college at the end
of the summer if it had not been for the labor trouble which the Respondent had
in August 1962. The record establishes, through Pasternack's testimony, that Paster-
nack had worked during an earlier period with Laura Modes as a part-time employee
e,Cf. Vulcanized Rubber and Plastics Company, Inc., 129 NLRB 1256, 1261.
71 have also considered as some evidence the testimony of Aggie to the effect that when
he at one time came back from a layoff, Figueroa said that he was going to get rid of an
employee named George. Although George did leave the premises permanently within a
very short time after Figueroa allegedly made the statement, there is nothing beyond his
statement to Aggle to show that it was Figueroa who either did the discharging or recom-
mended the discharge, or whether George was discharged.
LAURA MODES COMPANY 1603
during the school year. This would seem to support the contention that Pasternack
would have remained as a part-time employee had the Respondent not had difficulties
with the Union. However, it would seem that at the time of the union difficulties
around August 13 through 15, 1962, Pasternack had not as yet determined, nor had
Respondent accepted Pasternack as a regular part-time employee. I find that the
record establishes that at that time Pasternack was merely a temporary summer
employee. Accordingly, I do not include Pasternack as a member of the unit as of
the time that the demand for bargaining was made and as of the time that I must
fix the Union's majority or lack of majority.
In view of the foregoing I find that Lewis, Davis, Santiago, Bethel, and Aggie were
the only employees eligible for inclusion in the unit as of the time the demand for
bargaining was made.
Introduced into evidence were the union designation cards of Davis, Lewis,
Santiago, Bethel, and Aggie. Each of these named employees testified and identified
his card and stated that his card was signed voluntarily by him on the date shown
thereon. Inasmuch as the latest date of any card was July 9, I find that as of that
date and from that date up to and including the date that the demand was made
by the Union upon the Respondent for bargaining, the Union represented a majority
of the employees in the unit hereinabove found to be appropriate.
2. Sequence of events-interference, restraint, and coercion-the refusal
As noted above, the Union began organizing the Respondent's employees in the
early summer of 1962,$ and by July 9 all five stock and shipping employees had
signed union authorization cards. During the organizing period, union agents met
with these employees on a number of occasions and, at a meeting held during the
week preceding August 13, it was decided that it was time to demand recognition
from and bargaining with the Respondent.
As a result of the foregoing decision, on the morning of Monday, August 13,
Union Assistant Vice President Alvin Dicker and General Organizer Abe Cohen
visited the Respondent's premises- and spoke to partner Herbert Bernstein. Alan
Bernstein, a brother to Herbert and also a partner, was present also but at the time
neither Cohen nor Dicker knew who he was. Dicker informed Herbert Bernstein
that the Union "had signed up the workers in his [Respondent's] place" and told
Bernstein that the Union desired to make an appointment to negotiate a contract.
Bernstein replied that he had only one or two employees and asked why the Union
wanted to bother with such a small shop. Dicker then told Bernstein that the latter
had better start counting because the Union had five employees signed up, all of
whom claimed to work at the Respondent's shop. Then Dicker again reminded
Bernstein that they came to make an appointment, whereupon Bernstein replied
that be was not very familiar with union matters and wanted a day or two to talk
to somebody to determine what he should do .9 Accordingly, it was mutually agreed
that Cohen would call back on Wednesday, August 15, to arrange for the requested
appointment.
When this arrangement was completed, the Union's representatives asked if they
could speak to the employees. Upon Bernstein's consent, Cohen, Dicker, and Her-
bert Bernstein proceeded to the rear of the premises where the warehousing opera-
tion and the picking and packing of orders are performed.
Present in the back, besides Herbert Bernstein, Dicker, and Cohen, were em-
ployees Harold C. Davis, Arthur Lewis, James Aggie, and Supervisor Victor Figueroa.
Bernstein stated that Cohen and Dicker were from the Union and wanted to sign
up the employees, whereupon Dicker corrected him stating that the men had al-
ready signed up. Bernstein then asked Aggie, Lewis, and Davis, individually,
'All dates herein are in 1962
'From the testimony of Dicker, as corroborated by Cohen Herbert Bernstein testified
that Dicker did not mention that the Union represented Respondent's employees, but
rather that Dicker stated the Union wanted to organize the Respondent's shop. On the
other hand, Alan Bernstein testified that Dicker said the Union represented "some of the
Respondent's employees" and that they wanted to sit down and talk to Herbert Bernstein
about it. Because of the Inconsistencies in the Bernsteins' statements and the fact that
the cards of all the five unit employees were signed about a month before the demand
was made, making it illogical that Dicker would have asked for the right to organize the
Respondent 's shop, I credit Dicker's and Cohen's versions of the demand for recognition
and bargaining. However, I do not credit their testimony to the effect that the five em-
ployees who signed were named to Bernstein or that Bernstein admitted after the naming
of the men that they were his employees.
727-083-64-vol. 144-102
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether each had signed up with the Union and each replied in the affirmative. The
Union's representatives then left.io
About noon of the same day, August 13, while Bethel and Aggie were unloading
a truck in front of the Respondent's premises, Herbert Bernstein asked Bethel whether
he had signed up with the Union and the answer was "yes." 11
At approximately 5:30 p in. of the same day, Monday, Herbert Bernstein spoke
to Arthur Lewis and asked him whether the men had approached the Union, or the
Union had approached the men. Lewis told him that the men had approached the
Union.12
The testimony of what occurred during the next 24 hours is confusing and, at
times, contradictory. Most important, the exact sequence of alleged threats and
promises, allegedly made by Herbert and Alan Bernstein, is most difficult, if indeed,
not impossible to determine with any marked degree of exactitude. Accordingly,
I set forth below those events and remarks which I find are not contradicted by any
of the witnesses or which I find are established by a preponderance of the credible
testimony of some of the witnesses.
All of the witnesses agreed that on Tuesday, August 14, the Bernsteins called all of
the employees together for a meeting at approximately 12 noon in the showroom,
which was located off the entrance hallway in the front part of the premises 13 Alan
Bernstein did most, if not all, of the talking. He expressed his hostility to the
Union by stating that they (evidently Herbert and Alan) had been around the area
and heard nothing good about the Union. He further expressed displeasure with
the Union's presence in the shop and asked that the men pull out of the Union. He
stated that, in view of the close contact that had always prevailed between the em-
ployees and the Bernsteins, going to the Union was a "sneaky" thing. He also asked
the men to think the matter over and let the Bernstein know what they had decided
later in the day. At one point during the meeting, employee Arthur Lewis reminded
Alan Bernstein that the latter was expected to call the Union the next day and
Bernstein replied that he did not intend to make contact with the Union the next
day or any day thereafter. The meeting broke up after only 5 or 10 minutes, with
the Bernsteins saying that they would expect the men's answer later in the day.14
Within an hour after this meeting ended, the Respondent' s premises were visited
by Murray Levine, an organizer in the employ of the Union, accompanied by about
eight men who Levine testified were members of the Union and who he had picked
up on his way to the Respondent's premises for the purpose of assuring the men
in the Respondent's employ that they would be protected by the Union and had
nothing to fear from their employers. Levine and the men entered the Respondent's
premises and, without asking for permission , proceeded to the rear of the building
where the employees were working. Alan and Herbert Bernstein were in the office
as they passed the office door and, not having seen Levine before, did not know who
to From the credited testimony of Dicker and Cohen, as corroborated by Aggie, Davis,
and Lewis. Although Dicker testified that possibly Santiago was present and Cohen testi-
fied that Bethel was present, neither of these employees testified that he was present. I do
not credit Herbert Bernstein's denial of the interrogations.
11 From the testimony of Bethel . As heretofore noted, I do not credit Bernstein 's denial
of the interrogations . Although Aggie did not mention this incident in his testimony, I
was very impressed with Bethel 's testimony and am convinced of his truthfulness with re-
gard to it . Accordingly , I credit him in this regard
12 From the credited testimony of Arthur Lewis , which was undenied by Herbert Bernstein.
11 The Bernsteins both testified that a meeting at which the employees were asked to
think about the union matter was held at 5.30 on Monday afternoon . None of the General
Counsel's witnesses testified to such a meeting. In any event , since the Bernsteins ' testi-
mony, if credited , establishes that nothing of significance occurred at that time, I make
no finding with regard thereto.
14 From the credited testimony of Lewis as corroborated in part by Davis, Santiago,
Bethel, and Aggie. Although both Bethel and Davis omitted from their versions of the
meeting Lewis' reminder that Bernstein was to call the Union the next day and also
omitted Bernstein's reply to the effect that he had no intention of ever calling the Union,
Lewis, Santiago, and Aggie were very positive in this respect and their version would
follow naturally Alan Bernstein's statement that he had found out that the Union was no
good Accordingly, by reason of the foregoing and from my observation of the witnesses,
I credit the version related above. I do not credit the Bernsteins' version that all that
occurred was it statement that they did not want any union and asked the men to think
about it and that there would be no reprisals. Additional matters, not here mentioned,
which the employees testified occurred at that meeting, I do not credit because of the
tendency of all witnesses to telescope the events of the morning and afternoon meetings.
LAURA MODES COMPANY 1605
he or any of the men were. Alan asked what they were doing there and someone
answered that they were going to talk to the men. Herbert Bernstein then expressed
doubts as to their rights to enter and talk to the men while they were working. Levine
proceeded to the rear nevertheless, while the other men lined the passageway to the
rear and one of the men, standing at the office entrance, stated that it was "alright."
Bernstein then said that he was going to call his lawyer and the man who spoke
pulled the telephone, which Herbert had picked up, from Herbert's grasp and struck
Herbert in and about the face. Herbert then called to Leshne, who was also in the
office working, to call the police, but when she attempted to make the call, she too
was "punched around" by the same individual, who then proceeded to continue
punching Herbert. Alan Bernstein, who had originally been in the office, but had
gone to the showroom adjacent to the office, heard and saw what was going on and
seized a chair to assist his brother, but was unable to get to him with the chair be-
cause of some boxes which were blocking the passageway. Finally Herbert Bern-
stein managed to place the call to the police.
Levine, hearing the shouting in the office area, returned from the rear and called
to the people present to stop what they were doing, that the Union "did not want any
of that sort of thing." When Herbert Bernstein finally put his call through to the
police, all of the people, including Levine, rushed out.15
Later that day, about 5:30 p.m., another meeting was held by the Bernsteins with
the employees. Alan Bernstein again presided and again asked the employees to
leave the Union after expressing his disapproval of the Union. Alan and Herbert
told the men that they could forget about the Union and there would be no reprisals;
they would even put that in writing. But, either Alan or Herbert stated that if the
Union came in and there was a strike the Bernsteins would do the work themselves
as they had in the past and that they had money while the men had none and that
the Bernsteins would not be the ones who would starve. Herbert Bernstein also
said that the employers were the only ones who would decide who would work and
who would not and if they had to sign with the Union there would be a basic work
force of only two employees, Victor Figueroa and one other, and there would be lay-
offs and the rest of the men would only get, at the most, 35 weeks of work a year.
Additionally, Herbert Bernstein said that though he might sign with another union
he would never sign with District 65. He then asked the men individually if they
would get out of the Union and each replied that he was committed, and when
employee Davis said that he was committed Bernstein said that Davis was not and
he then called a lawyer on the telephone and had Davis talk to the lawyer who told
Davis that he had a constitutional right to leave the Union. Then Victor Figueroa
asked Davis to talk on the telephone to one of Figueroa's friends who would tell
Davis of the bad experiences that he had had with unions. Davis refused. The
meeting broke up with the Bernsteins asking the men to think it over.16
On the morning of Wednesday, August 15, Cohen and Dicker revisited the premises
of the Respondent. They spoke to Alan and Herbert Bernstein. Dicker told the
Bernsteins that they had not heard from them and they were there to make an appoint.
ment. Herbert Bernstein answered that he did not care to talk to them and one of the
brothers (not indentified) said that they did not care to talk any more and one brother
told the other one not to say any more. Cohen then instructed the Bernsteins that
since their employees had joined the Union, they were obligated to negotiate, and
then one of the Bernsteins stated that he would never negotiate and the other said,
"Stop talking, tell them to leave or call the police." Then Cohen and Dicker left.
After they left the Respondent's premises, Cohen went to the Board office and filed
a charge.'
Sometime during either Wednesday or Thursday Herbert Bernstein and Jean
Leshne spoke to employee Aggie. Aggie had a strip of adhesive tape on his face
and Bernstein and Leshne both told Aggie that he must have been beaten up by the
Union. Aggie denied this.18
16 From the uncontradicted testimony of Herbert Bernstein, Alan Bernstein, and Jean
Leshne, which I credit
16 From the credited testimony of employees Davis, Lewis, and Bethel as corroborated by
the testimony of Aggie and Santiago. I do not credit the Bernsteins' version of the meet-
ing to the effect that all they did was ask the men to reconsider their union membership
in view of Alan Bernstein ' s admission that Herbert Bernstein probably did tell the em-
ployees during that meeting that he would never sign with District 65.
17 From the credited testimony of Cohen as corroborated in part by Dicker This testi-
mony was not materially contradicted by the testimony of either of the Bernsteins
Accordingly, I credit it
"From the credited testimony of employee Aggie which was not denied by any Respond-
ent witness
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime later on Wednesday an attorney named Russakow called union head-
quarters , identified himself as Respondent 's lawyer, and informed Cohen that he
was busy on Thursday and could not make a mediation board meeting which Cohen
had.arranged . Russakow asked Cohen to hold off until he could meet with the
Union. That evening this information was passed on to the employees at a meeting
held at union headquarters and the employees thought that Russakow 's call was just
a stall. The employees also reported that the Respondent was busy shipping out
merchandise which had been marked for later shipment.
As a result of this meeting the union representatives agreed that they would meet
with the workers in front of the Respondent 's premises the following morning and
attempt to see for themselves whether Russakow 's call had been made in good faith.
Accordingly , they met in front of Respondent 's premises as agreed upon and pro-
ceeded inside to speak to Herbert Bernstein . Present for the Union were Dicker
and Cohen . The union representatives asked Herbert Bernstein whether he would
meet with them either on Thursday at the Board or on Friday. Herbert Bernstein
answered , "You'll have to talk to my lawyer about this " Again Cohen asked him
to tell whether they were going to meet and Bernstein answered , "No, you will
have to talk to my lawyer about that ." Nothing else was said. Thereupon the
union representatives left and met with the employees outside. It was decided that
the employees would continue to work and that the union representatives would
attempt to make contact with Russakow during that day and that they would have
another union meeting at headquarters that night.
Thereafter , Cohen tried to reach Russakow several times Russakow finally called
back about 5:30 that evening and Cohen asked him whether he was prepared to meet
with the Union on Friday. Russakow answered he was going to meet with his client
Thursday night but that he had no intention of meeting with the union officials on
Friday since he had several other engagements including a golfing appointment.
Cohen told Russakow that his failure to meet with them would be taken by the
employees to be bad faith . Russakow replied that he had no intention of meeting
with the Union on Friday and that the Union could do anything they cared to do
about it.
Later that evening, August 16, the union representatives met again with the
employees . All five of the employees who had signed union cards attended. Cohen
reported the substance of his conversation with Russakow . Then the employees
informed Cohen that the Company had been very busy shipping orders that day,
clearing the storage space on the 10th floor , and packing orders that had been
designated originally for shipment in September and October . Faced with these facts
the employees felt that they had no other alternative but to go on strike and they
voted to strike . The next day the employees did not report to work and instead
formed a picket line in front of the premises. The picketing was still in progress
as of the date of this hearing.19
By way of explanation of the reason for the Bernsteins ' refusal to deal with the
Union, Herbert Bernstein stated that the purpose in calling the meetings with the
men on Tuesday was to get the feelings of the men. He further testified that prior
to the first visit of Cohen and Dicker to the Respondent 's premises , certain events
had been happening . There had been unrest , fist fights , arguments , and lack of dis-
cipline and some of the men had told Victor Figueroa to mind his own business when
he had asked them to do their work. Then, when Cohen and Dicker arrived and
stated their purpose the whole meaning of the events that had been occurring in
the shop came into focus . He felt that possibly some of the men really did not want
the Union but were being coerced into it. But Bernstein also testified on cross-
examination that doubts crept in about the majority because of the beating that he
had received from District 65 members . He admitted that if he had not been
beaten up on Tuesday , his shop "would be union today" and he would have recog-
nized the Union by Friday of that week. His words were "if they hadn 't beaten me
up on Tuesday, by Friday I would have agreed to negotiate ." But, Bernstein testified
that he felt that if he was beaten up his employees may have been beaten up, and
there must have been one boy spotted in the plant and he "got into one or the others."
Therefore , he did not think that there was a definite majority at that time . 20 Bernstein
further stated that when Cohen and Dicker visited him on Monday he was not anti-
union at that time; that his antiunion feeling arose only after he was beaten.
10 From the uncontradicted testimony of Cohen and Dicker as corroborated by each of
the employees This testimony is credited.
20 This, in effect, is the crux of the Respondent 's theory of defense.
LAURA MODES COMPANY 1607
3. Analysis and conclusion with regard to the interference, restraint,
and coercion and the refusal to bargain
In the light of Herbert Bernstein's admission that had it not been for the Tuesday
assault he would have recognized and bargained with the Union by Friday, the
primary issue is whether the Bernsteins because of the Tuesday incident entertained
a good-faith doubt as to the Union's majority status or whether even before that
time they had made a decision not to bargain with the Union regardless of the ques-
tion of majority. If the latter is true, then the Tuesday assault did not, in actuality,
figure significantly in the making of the decision not to bargain with the Union and
the proffered good-faith doubt defense becomes a mere pretext.
Assuredly, after the interrogation of employees Davis, Lewis, Bethel, and Aggie on
Monday and in the light of Bernstein's admission above outlined, there was no doubt
that he knew at least four employees, a majority, were members of the Union or had
signed authorization cards. Thus, when the Bernsteins called the Tuesday morning
meeting they were aware of the Union's paper majority. The events of that
meeting, therefore, become very significant because the interrogations, standing alone,
were not of such import as to establish that at that time the Bernsteins had embarked
on a course of conduct designed to undermine the Union's majority.21 Although, I
find that most of the statements of the Bernsteins at the Tuesday morning meeting
indicated hostility toward the Union, these remarks were not coercive and could be
considered protected as free speech within the meaning of Section 8(c) of the Act.
I would even extend this protection to the remark that the Bernsteins had found out
that District 65 was no good.
However, the significant remark made at that meeting was the one by Alan Bern-
stein in answer to employee Lewis' question as to whether the Bernsteins were going
to call the Union the next day. The answer was to the effect that they would not
then or ever. Certainly, no more definite statement signifying an employer's inten-
tion not to deal with his employees bargaining representative can be conceived.
While it is not at all improbable that the unwarranted physical assault upon Herbert
Bernstein and Jean Leshne strengthened Respondent's determination not to bargain,
it nevertheless was not the turning point which, I find, had been reached sometime
before. Under these circumstances the fight and arguments could not have been
factors in the original determination not to bargain. Deplorable and reprehensible as
the Union's conduct may have been, the refusal to bargain occurred, in my opinion,
before the assault and a remedy is required for that refusal 22
Also significant in my determination that the assault was not, in fact, the turning
point is the additional fact that although the Respondent here filed 8 (b) (1) (A)
charges against the Union with regard to events that occurred during the picketing
which began on Friday, August 17, no mention was made in those charges of the
Tuesday incident. It would seem that had the incident loomed as large in the Re-
spondent's mind as it now claims, the charge would have included this incident.
In connection therewith I have also considered, beside the assault, the other
matters, to which Herbert Bernstein testified, which Respondent contends was sig-
nificant in the formation of the alleged good-faith doubt. While it is true that Aggie
admitted that on that occasion he did have a plaster on his face which might have
indicated to an already suspicious mind that Aggie had been beaten up, it is estab-
lished that the plaster did not appear until Wednesday or Thursday, long after the
determination not to bargain 23
Moreover, although fights had taken place among the men (Lewis testified it was
over work assignments), neither of the Bernsteins had ever asked any of the men
what the arguments were about. Certainly, if they believed that the men had been
assaulted, the logical procedure would have been to ask the employees the source
of the trouble.
In addition, although Bernstein testified that when Dicker and Cohen came to
the Respondent's premises on Monday morning and demanded recognition, the
reason for the fights and the arguments became clear and he thought the men had
21 Cf. Joy Silk Mills, Inc., 85 NLRB 12133
22 In finding that the Bernsteins had determined not to bargain before the assault, I do
not condone the assault However, because the assault did not figure in the original
determination not to bargain, I do not find it necessary to decide whether this Respondent
or any other employer, who has been physically assaulted by a majority union and who
has not otherwise refused to bargain, is, nevertheless, obligated under the Act to bargain
28 Aggle testified that the plaster covered an unsightly sore left from the squeezing of a
pimple Noting that Aggie has a bad complexion, I credit this testimony.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been physically coerced into membership in the Union, he at the same time admitted
that he believed the Union represented the men.
Having determined that the Respondent resolved before the assault that it would
not bargain with the Union the statements made by the Bernsteins at the Tuesday
afternoon meeting and the refusal on Wednesday and Thursday to talk to the
Union's representatives are merely additional evidence of the refusal to bargain and
the Bernsteins ' fixed determination not to deal with the Union. Accordingly, I find
that the Respondent did not entertain a good-faith doubt as to the Union's majority
status and that the refusal to bargain with the Union constitued a refusal to bargain
in good faith within the meaning of Section 8(a) (5) of the Act.
With regard to the complaint allegations that the Respondent also coerced and
threatened its employees, I regard the testimony of what occurred at the Tuesday
meetings significant. First, on Tuesday morning Alan Bernstein told the employees
he would never call the Union. Thus, as set forth above Herbert Bernstein, on
Tuesday afternoon, told the employees that if the Union came in the Bernsteins
would be able to endure a strike but the employees would starve. I do not regard
this statement as a statement of what might possibly happen if the Union came in
but as an outright threat that the men would be starved out if the Union was to be
successful. With regard to the Bernsteins' statement to the effect that if the Union
came in there would be only a basic work force comprised of Figueroa and another
man and that the men would only get a 35-week year and that there would be layoffs,
I regard this as direct threat upon the future security of the men if they proceeded
with their union ambitions.
Although the complaint alleges that the Respondent made promises of benefits to
the men if they would leave the Union, I do not find record support for this allega-
tion. Although there was some testimony to the effect that the Employer promised
the men benefits if they would leave the Union, there was no corroboration and I do
not credit it.24
Had the interrogation of Davis, Lewis, Aggie, and Bethel occurred in an atmos-
phere free from coercion and threats, in view of their nature it could possibly be
found that they were not violative.25 However, the interrogations here cannot be
considered out of context and must be considered in the light of all of the other
circumstances surrounding them. In these circumstances I find that the interroga-
tions were coercive in nature and were, accordingly, violative.
Accordingly, I find that the Respondent interfered with, coerced, and threatened
its employees with regard to their Section 7 activities within the meaning of Section
8 (a) (1) of the Act.
4. The alleged picket line violence
The Respondent contends that two of the employees, Lewis and Aggie, are not
entitled to reinstatement because they were guilty of conduct during the srtike which
warrants withholding from them the right of reemployment with the Respondent.
Inasmuch as the Respondent's contention, if true, could effect the remedy for the
unfair labor practices found above, I find it necessary to determine whether Lewis
and Aggie conducted themselves in such a manner as to deprive them of their rights
to further employment.
Herbert Bernstein testified that while the picketing was proceeding he and his
brother Alan found it necessary to load a truck of merchandise parked in front of
their place of business . At one time when Alan was passing through the picket
line with a large carton in his arms, he found it necessary to pass close by employee
Aggie who was on the picket line. According to Herbert, as Alan Bernstein passed
Aggie, the latter viciously pushed his elbow into the rib area of Alan Bernstein and
caused him to lose his balance. Herbert Bernstein testified that he saw Aggie de-
liberately cock his elbow in such a way as to aim it directly at Alan Bernstein. Alan
Bernstein corroborated this testimony by stating that he was severely injured by the
blow.
Aggie, on the other hand, testified that he was on the picket line walking peace-
fully when he was suddenly pushed from behind on his shoulder. He then, in a
natural reaction, shoved the bundle that Alan Bernstein was carrying so as to save
himself from being knocked down. Cohen, the union organizer , testified that the
event occurred as Aggie had stated it and that, moreover, two policemen were present
to enforce picket line peace and saw the incident. One of the policemen stopped
24 Only Davis testified that if the men wanted more money the Respondent would give it
to them No other testimony was given in support. Because Davis' recollection was in
some respects vague as to what occurred on Tuesday afternoon, I cannot credit this un-
eorroborsted testimony.
25 See Blue Flash Express, Inc, 109 NLRB 591.
LAURA MODES COMPANY 1609
Aggie but the other policeman came over and stated that Aggie had not purposely
forced Alan Bernstein to fall over and the policemen refused to pursue the matter
further.
In view of all of the testimony and in view of the fact that neither of the
Bernsteins refuted what Cohen related with regard to the police action, although they
did state that they did not want to press the matter, I find that Aggie was not
involved in such a way as to preclude him from reemployment. I find that there
is a failure of proof that the pushing or shoving was purposeful on Aggie's part.
Alan Bernstein testified that on August 29 while the picketing was going on he left
the premises about noon and was followed by employee Lewis. When Bernstein
had reached a point some blocks away from the employees' premises Lewis gestured
with his finger toward Alan Bernstein, pointing Bernstein out to four men who were
then on the street corner. These men immediately proceeded to assault Bernstein.
To use Alan Bernstein 's expression , Lewis had "fingered" him.
Lewis, on the other hand, testified that he had left the picket line that day about
the time that Alan Bernstein testified and proceeded toward the place where he
normally ate lunch. He stated emphatically that he did not follow Alan Bernstein,
that he did not point Bernstein out to anyone, and that he did not see Bernstein
assaulted.
This is the sum and substance of the testimony with regard to this incident. Al-
though I have discredited Alan Bernstein in other respects and although I have credited-
Lewis in other respects, in this instance, having in mind the Union's other conduct
of violence, I find that Alan Bernstein was assaulted. I further find that Lewis
figured in that assault in the manner in which Bernstein testified that be did. I can-
not credit Lewis' testimony that he did not know anything occurred. Accordingly, I
will, in my recommended remedy hereinafter set forth, deny to Lewis the right to
reinstatement 2a
5. The strike and the replacements
As heretofore set forth, the employees went out on strike on Friday morning,
August 17, and were still on strike and picketing as of the date of the hearing herein.
The record establishes that the reason for the strike and the picketing was the Re-
spondent's refusal to meet and bargain with the Union with regard to the employees'
wages, hours, and working conditions. Accordingly, it follows, and I find, that the
strike was an unfair labor practice strike.
On August 17, the day of the strike, the Respondent sent a telegram to each of the
employees to the effect that if the employee did not return by the beginning of working
hours on August 20 the Respondent would consider the employee as having left his
employment because he walked out. The men, of course, did not return on August 20"
and as a result the Respondent on August 21 sent an additional telegram to each of the
men. These telegrams each read that if the men did not report to work on Thursday,
August 23, at the regular starting time each would be permanently replaced. The
record further establishes that each of the men has been permanently replaced.
Inasmuch as I have found that the strike was an unfair labor practice strike, and
inasmuch as it is established, and I find, that the men had been permanently replaced-
because of striking in protest of Respondent's unfair labor practices, I find that the
employees who walked out on strike and were replaced are unfair labor practice
strikers. Accordingly, with the exception heretofore noted in the case of employee-
Arthur Lewis, I shall make the necessary recommendations with regard to the
strikers in the section of this Intermediate Report entitled "The Remedy."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operation of the Respondent described in section I, above, have a_
close, intimate, and substantial relation to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening and obstructing commerce,
and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices I shall-
recommend that it cease and desist therefrom and take affirmative action designed
2a In this regard I do not find it necessary to discredit Alan Bernstein whom I have
otherwise discredited nor find it necessary to credit Lewis whom I have otherwise credited.
Although Lewis, I find, did figure in the assault of Bernstein, I do not find that he is
necessarily incredible in other respects.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to effectuate the policies of the Act. It having been found that the Respondent, by
threats and interrogations, interfered with, restrained, and coerced its employees in
violation of Section 8(a) (1) of the Act, I shall recommend that the Respondent cease
and desist therefrom.
It having been further found that the Respondent refused to bargain collectively
with the Union, thereby interfering with, restraining, and coercing its employees, I
shall therefore recommend that the Respondent cease and desist therefrom and also
upon request bargain collectively with the Union with respect to wages, hours, and
other terms and conditions of employment and embody in a signed agreement any
understanding reached.
Also having found that the strike which ensued from the Respondent's refusal to
bargain was an unfair labor practice strike and that the employees, who at the time
of the hearing herein were still striking, were unfair labor practice strikers who had
been replaced, I shall recommend that the Respondent be ordered, upon application
of each of the employees, to offer each employee reinstatement to his former or sub-
stantially equivalent position , without prejudice to his seniority or other rights and
privileges, dismissing if necessary any employee hired to replace him. It shall be
recommended also that in the event of the Respondent's refusal, if any, to reinstate any
employee upon request, that the Respondent make whole such employees by payment
to each of them a sum of money equal to that which each would have earned as wages
during the period from 5 days after the date on which each applies for reinstatement
to the date of the Respondent's offer of reinstatement, such loss to be computed in
the manner set forth in F. W. Woolworth Company, 90 NLRB 289. Computation
of such backpay as may be incurred as set forth herein shall include 6 percent interest
per annum as provided for by the Board in Isis Plumbing & Heating Co., 138 NLRB
716. I shall also recommend that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the determination of any amounts
which may become due under this recommended remedy.
Because I have found heretofore that employee Arthur Lewis conducted himself
in such a manner during the picketing period as to be precluded from receiving any
of the remedial benefits herein set forth, I shall recommend that it be ordered that
Arthur Lewis need not be reinstated by the Respondent nor will he be entitled to any
of the other benefits set forth in this remedy.
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. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. Herbert Bernstein, Alan Bernstein, Laura Bernstein, a copartnership d/b/a
Laura Modes Company, is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
3. By coercively interrogating employees concerning their union membership, by
threatening to lay off or discharge employees for engaging in union activities, by
threatening to discharge its employees if they chose the Union to be their bargaining
representative, the Respondent has engaged in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, was, on
August 13, 1962, and at all times since has been, the exclusive representative within
the meaning of Section 9(a) of the Act of the employees of the Respondent in the unit
herein found appropriate for the purposes of collective bargaining.
5. All of the Respondent's stock and shipping employees employed at the Re-
spondent's plant, exclusive of office clerical employees, guards, watchmen, professional
employees, and supervisors as defined in Section 2(11) of the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
6. By refusing to bargain collectively with District 65, Retail, Wholesale and De-
partment Store Union, AFL-CIO, as the exclusive representative of its employees
in the appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce.
rRecommended Order omitted from publication.]