Louis Rosenberg, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1959

122 N.L.R.B. 1450 (N.L.R.B. 1959)

1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louis Rosenberg, Inc. and Bonnaz, Embroideries , Tucking,
Pleating and Allied Crafts Union, Local 66, International
Ladies' Garment Workers Union , AFL-CIO and Local 1614,
International Brotherhood of Electrical Workers, AFL-CIO
and Local 810, Steel , Metal , Alloys and Hardware Fabricators
and Warehousemen , International Brotherhood of Teamsters,
AFL-CIO, Parties to the Contracts.' Cases Nos. 2-CA-5049
.and 2-CA-5279. February 16, 1959
DECISION AND ORDER
On March 28, 1958, Trial Examiner Reeves R. Hilton 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 that the complaint be dismissed
with respect to such allegations. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following modifi-
cations and additions.
The Trial Examiner found that the strike of August 17, 1956, had
the dual purpose of seeking recognition for Local 66 as the bargain-
ing representative of Respondent's employees and protesting the dis-
criminatory discharge of employee Mary Boza. He also found that
there was in existence at this time a contract between the Respondent
and Local 1614, the provisions of which included a no-strike clause.
On the ground that the first objective of the strike did not relate to
an unfair labor practice,2 the Trial Examiner held that the strike
was unprotected under the Mastro Plastics doctrine.' The General
1 The Unions appearing in the caption are herein respectively called Locals 66, 1614,
and 810.
2 The General Counsel, who alleged at the hearing that the Respondent violated Sec-
tion 8 ( a) (5) of the Act by refusing to bargain with Local 66, excepts to the Trial
Examiner 's dismissal of this allegation only insofar as the Trial Examiner finds Local 66
to be a minority union. For the reasons stated in the Intermediate Report, we find in
agreement with the Trial Examiner that there were in the appropriate unit 52 employees
less than a majority of whom designated Local 66 as their representative.
s Mastro Plastics Corp ., 350 U.S. 270 , 279-284 , wherein the Supreme Court held that
employees retain their right to strike in the face of a no -strike clause only if they strike
solely against the unfair labor practices of the employer.
122 NLRB No. 168.
LOUIS ROSENBERG, INC. 1451
Counsel contends that the Strike was protected under Mastro Plastics
because, its sole purpose was to protest Boza's unlawful discharge.
As we find for other reasons set forth below that the strike was
protected, it is unnecessary for us to reach or pass upon the pro-
priety of the application of the Mastro Plastics principle in this
proceeding.
The record shows that on June 14, 1955, the Respondent and Local
1614 executed a complete contract which contained a no-strike clause
and provided for the negotiation of a new agreement 60 days prior
to the expiration date of midnight June 14, 1956. The contract was
signed by Norman Rosenberg, secretary-treasurer of the Respondent,
Milton Silverman, Local 1614 business manager, and Local 1614 shop
committee members who, in accordance with past practice, partici-
pated in the Union's negotiations with the Respondent. In the
spring of 1956, Henry R. Malamy,4 the Local 1614 representative,
and the shop committee discussed a new contract with Rosenberg
who indicated that he could not grant any of the Union's demands.
The next meeting with Rosenberg was arranged by Malamy and took
place at the latter's office on the evening of June 14, 1956, without
the shop committee being present. At that time Malamy and Rosen-
berg signed a 1-year extension agreement, dated June 14, 1956,
amending the contract which was due to expire that midnight.' It
provided for a 30-day instead of a 3-week probationary period for
employees, higher hourly starting and minimum wages, arbitration
of unresolved issues pertaining to a "general increase," nightshift
differential, holidays and vacations, and a continuation of all other
terms in the prior contract. The agreement provided further that
all terms agreed upon and/or awarded by the arbitrator should be
effective and retroactive to June 15, 1956.
However, on the next day, June 15, Malamy and the shop com-
mittee met in Rosenberg's office where it appears no mention was
made of the extension agreements According to Rosenberg, they
"continued to negotiate," on substantially the same topics covered by
the extension agreement.' Rosenberg took the position that he still
could not grant anything that Local 1614 asked for and offered only
to pay certain lower paid employees 5 cents above the minimum rate.
When the employees at their meeting on the same day rejected the
wage offer and voted for arbitration against Malamy's advice, the
latter stated that they would be working without a contract. On
As indicated in the Intermediate Report, Malamy did not testify at the hearing.
The agreement was also subsequently signed by Josephine Johnson, shop steward, and
Silverman as Local 1614 business manager.
C Rosenberg testified that he himself did not refer to the extension agreement and was
not sure that Malanly did so. In addition , Shop Committee Member Boza and another
employee , Alfonso Yambay , testified that they did not learn of the extension agreement
until August 17 and 20, respectively.
7 Boza also testified to this effect.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 15, 1956, and on August -14, 1956, the employees again rejected
wage offers made through Malamy and voted for arbitration.
It is clear from the foregoing that when Rosenberg and Malamy
on June 14, 1956, departed from customary practice in meeting with-
out the shop committee and signing the extension agreement they
were engaging in formalities which were but empty gestures. That
there, was no actual meeting. of the minds on the evening of June 14
is amply demonstrated by the continuation of full-scale negotiations
the next day on the very same issues which presumably had been
settled by the extension agreement. Moreover, as noted above, the
apparent failure-to. refer to or rely on the extension agreement at
the June 15 meeting indicates that little weight was attached thereto
as a conclusive and binding agreement. It is also significant that
Malamy warned employees on June 15 that they would be working
without a contract if they did not at that time come to an agreement
with the Respondent. Finally, it is evident from the repeated wage
offers on June 15 and thereafter that this issue was kept open and
that there was a failure to observe the June 15 effective date of the
agreement for such a crucial item as wages.
Accordingly, we find that the extension agreement was a nullity
from its inception. As the prior contract expired on June 14, 1956,
we further find that, in the absence of an outstanding, no-strike
clause, the strike, which had as one of its objectives a protest against
the discriminatory discharge of Boza, was protected as an unfair
labor practice strike and the Respondent's failure to reinstate the
strikers violated Section 8(a) (3) of the Act.. We shall therefore
order the Respondent to offer the following strikers immediate and
full reinstatement to their former or substantially equivalent posi-
tions and make them whole for any loss of pay suffered as a result
of the discrimination against them : 8
Luisa A. Acosta Heraclio Falci Nelson
Luis A. Adorno Maria Montanez Ramos
Carmen Alvarez Maria Rivera
Mariana Benitez Valentina Rivera
Mary Boza Felix Rosario
Leola Calder Elias Sanchez
Monseratte Limonte Maria G. Solis
Israel Maisonette Gregoria Torres
Concepcion Martinez Pedro Torres
Joaquin Melendez Alfonso Yambay
Carmen G. Moran
8 As the Trial Examiner found that only Mary Boza was discriminated against, we
shall, In accordance with our usual policy, exclude the period from the date of the.
Intermediate Report to the date of the Order herein in computing back pay for all.
the listed strikers except Boza. Fry Products, Inc., 110 NLRB 1000, 1005.
LOUIS ROSENBERG, INC. 1453
We agree with the Trial Examiner that the " Respondent 's union-
shop contract with Local 810;' covering a single ' employee, was not
unlawful.
Contrary to our dissenting colleagues , we agree with the Trial
Examiner that the statute does not preclude representation of in-
dividual employee units by an authorized representative . In this
respect the dissenting opinion of Member Bean misconstrues the
Luckenbach Steamship case ( 2 N.L.R .B. 192 ) cited therein, by omit-
ting several significant sentences . The relevant language from that
decision follows :
The National Labor Relations Act creates the duty of employers
to bargain collectively. But the principle of collective bargain-
ing presupposes that there is more than one eligible person who
desires to bargain. The Act therefore does not empower the
Board to certify where only one employee is involved. This
conclusion does not mean that a single employee may not desig-
nate a representative to act for him; he had such a right without
the Act, and the Act in no way limits that right. By the same
token, this conclusion in no way limits the protection which the
Act otherwise gives such an employee . [Emphasis supplied.]
The fact that the Board, will not certify a one-man unit does not,
of course , mean that the unit is inherently inappropriate under Sec-
tion 9 ( a) of the Act. It is a basic rule of statutory construction that
the plural includes the singular , unless the context indicates other-
.wise. Code of Laws of the United States, title I, chapter 1, sec-
tion 1. We do not believe that Section 9 (a) of the Act requires the
interpretation that an individual employee is foreclosed from bar-
gaining with his employer , if he -so desires , through an outside
representative.
ORDER
Upon the entire record in this proceeding and pursuant to Sec-
tion 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
Louis Rosenberg , Inc., its officers , agents, successors , and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of Bon-
naz, Embroideries, Tucking, Pleating and Allied Crafts Union,
Local 66, International Ladies' Garment Workers Union, AFL-CIO,
or any other labor organization, by discharging employees or in any
other manner discriminating against its employees in regard to their
hire or tenure of employment.
(b) Interrogating its employees concerning their membership,
affiliation , or sympathy with the above or any other union.
1454 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to,
form labor organizations, to join or assist Bonnaz, Embroideries,,
Tucking, Pleating and Allied Crafts Union, Ldcal 66, International
Ladies' Garment Workers Union, AFL-CIO, or any other labor or-
ganization, to bargain collectively through representatives of their-
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid and 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 authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Luisa A. Acosta, Luis A. Adorno, Carmen Alvarez,,
Mariana Benitez, Mary Boza, Leola Calder, Mouseratte Limonte,,
Israel Maisonette, Concepcion Martinez, Joaquin Melendez,_ Carmen
G. Moran, Heraclio Falci Nelson, Maria Montanez Ramos, Maria
Rivera, Valentina Rivera, Felix Rosario, Elias Sanchez, Maria G.
Solis,' Gregoria Torres;, Pedro Torres, Alfonso Yambay, immediate
and full reinstatement to their former or substantially equivalent
positions and make them whole for any loss of pay suffered as a
result of the discrimination against them in the manner described
above.'
(b) Post at its plant at New York City, copies of the notice at-
tacked hereto, marked "Appendix." 7e Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent's official representative,
.be posted immediately upon receipt thereof, and be maintained by
the Respondent for a period of at least 60 consecutive days there-
after. Reasonable steps shall be taken by the Respondent to insure
that said notice shall not be altered, defaced, or covered by any other
material.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports,
and all records necessary or useful. to analyze the amount of back
pay due and the rights of the strikers under the terms of this Order.
(d) Notify the Regional Director for the Second Region in writ-
ing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
9 F. W. Woolworth , 90 NLRB 289.
io In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
LOUIS ROSENBERG , INC . 1455
IT IS FURTHER ORDERED that the complaint be and hereby is, dis-
missed insofar as it alleges that the Respondent violated Section 8(a)
(2) and (5) of the Act.
MEMBER BEAN, dissenting in part:
I am unable to agree with my colleagues of the majority in af-
firming the Trial Examiner's finding that the Respondent did not
violate the Act by making a union-security contract for the one
chauffeur. It seems quite apparent, and my colleagues appear to
agree, that, prima facie, the Respondent thereby unlawfully en-
couraged union membership by discrimination in regard to tenure
of employment. It appears equally clear to me that the Respondent
cannot justify this discrimination on the ground of the proviso to
Section 8(a) (3), which authorizes the making of a union-security
contract only with a labor organization which is the "representa-
tive of the employees as provided in section 9(a), in the appropriate
collective-bargaining unit covered by such agreement."
That one employee may not constitute an appropriate unit for
collective bargaining was settled in Luckenbach Steamship Co., Inc.,
2 NLRB 192, 193, in which the Board held that :
The National Labor Relations Act creates the duty of employers
to bargain collectively. But the principle of collective bargain-
ing presupposes that there is more than one eligible person who
desires to bargain. The Act therefore does not empower the
Board to certify where only one employee is involved....
This decision as well as the plain meaning of the statute, which
contains the word "employees" in the plural, makes it clear that
there is here no statutory foundation for the existence either of an
exclusive bargaining contract or a union-security contract since
there is lacking an indispensible party to such a contract.
The legislative purpose which the Congress had in mind in pro-
viding for a union-security contractual provision was to compel the
minority of the employees within the unit, who were represented
by the exclusive bargaining agent without their consent, to pay their
proportionate share of the cost of collective bargaining. It being
clear to me that a one-man unit is inappropriate for collective-
bargaining purposes and does not fall within the statutory author-
ization for a union-security contract, I believe the purpose of the
compulsory exaction is defeated and such contract may well infringe
upon the employee's negative right guaranteed by Section 7 by com-
pelling membership and the payment of dues and initiation fees
without the correspondent benefit of collective bargaining on the part
of such single employee.
The majority does not dispute my observation that the Act permits
a union-shop contract to be made only by the collective-bargaining
1456 DECISIONS OF.NATIONAL LABOR RELATIONS BOARD
representative as provided in Section 9(a), and that the Union is
not such a representative because, but one chauffeur is here, involved;
When the majority dispute only a statement that I do not make, to
wit-that the Act precludes or forestalls bargaining for a single em-
ployee unit-they scarcely have done other than admitting the
validity of my point as applied to a union-security contract.
MEMBER JENKINS, dissenting in part :
I agree with Member Bean that the Respondent violated the Act
by, executing and maintaining a union-security contract covering one
employee. In so doing I rely exclusively on the clear and unambigu-
ous language of the proviso clause of Section 8(a) (3) which states
that any security clause in derogation of the rights of employees
conferred in Section 7 may only be incorporated in the appropriate
collective-bargaining unit. The Board has repeatedly and consist-
ently held that a single employee cannot constitute an appropriate
bargaining unit.
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 NOT.discharge or otherwise discriminate against any
employee for the purpose of discouraging membership in Bonnaz,
Embroideries, Tucking, Pleating and Allied Crafts Union, Lo-
cal 66, International Ladies' Garment Workers Union, AFL-
CIO, or any other labor organization.
WE WILL NOT interrogate our employees concerning their mem-
bership, affiliation, or sympathy with the above or any other
union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection and
to refrain from any or all 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 employ-
ment, as authorized in Section 8(a) (3) of the Act.
WE WILL offer to Luisa A. Acosta, Luis A. Adorno, Carmen
Alvarez, Mariana Benitez, Mary Boza, Leola Calder, Monseratte
Limonte, Israel Maisonette, Concepcion Martinez, Joaquin
Melendez, Carmen G. Moran, Heraclio Falci Nelson, Maria
LOUIS ROSENBERG, INC. 1457
Montanez Ramos, Maria Rivera, Valentina Rivera, Felix Rosario,
Elias Sanchez, Maria G. Solis, Gregoria Torres, Pedro Torres,
Alfonso Yambay, immediate and full reinstatement to their
former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of pay suffered as a
result of the discrimination against them.
All employees are free to become, remain, or to refrain from
becoming or remaining members in good standing in the above-named
union or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section 8
(a) (3) of the Act.
Louis ROSENBERG, 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
STATEMENT OF THE CASE
Upon separate charges, as amended, filed by Bonnaz, Embroideries, Tucking,
Pleating and Allied Crafts Union, Local 66, International Ladies' Garment Workers
Union, AFL-CIO, herein called Local 66, the General Counsel of the National
Labor Relations Board, through the Regional Director for the Second Region
(New York City), issued an order consolidating the cases, a notice of hearing, and
complaint, dated April 29, 1957, against Louis Rosenberg, Inc., herein called the
Respondent or the Company and Local 1614, International Brotherhood of Elec-
trical Workers, AFL-CIO, party to the contract, herein called Local 1614. Copies
of the charges, order of consolidation, complaint, and notice of hearing were duly
served upon the Respondent and Local 1614. In brief, the complaint alleges that
on or about August 16, 1956, and thereafter, the Respondent, by unlawfully in-
terrogating and theatening its employees with discharge because of their member-
ship in or activities on behalf of Local 66, by discharging Mary Boza, by refusing
to reinstate 21 striking employees, by executing and maintaining a collective-
bargaining agreement with Local 1614, containing a union-shop provision, at a
time when Local 1614 was not the duly designated bargaining representative for
the employees, and by refusing to bargain with Local 66 for its employees in a
unit appropriate for the purposes of collective bargaining, thereby engaged in con-
duct in violation of Section 8(a)(1), (2), (3), and (5) of the Act. The answer while
admitting certain allegations of the complaint denies the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
in New York City on November 12, 1957, and all parties were represented by
counsel. Prior to that date the General Counsel, by letter dated November 8,
1957, advised the parties and counsel that on November 12, he would, "by appro-
priate motion or order," amend the complaint by adding Local 810, Steel, Metal,
Alloys and Hardware Fabricators and Warehousemen, International Brotherhood of
Teamsters, AFL-CIO, as party to the contract, herein called Local 810, and that
the Respondent by executing and maintaining a collective-bargaining agreement
with Local 810 covering one chauffeur, when Local 810 did not represent that
employee, thereby violated Section 8(a)(1) and (2) of the Act. At the opening of
the hearing the General Counsel presented an order signed by the Regional Di-
rector, dated November 12, amending the complaint in the manner described
above. Counsel for the Respondent and Local 1614 questioned the authority of
05385-59-vol. 122-9355
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director, under the Board's Rules, to amend the complaint in these
circumstances and also pointed out that no charges or amended charges had been
filed against Local 810. In substance, counsel conceded that the filing of a new
charge or amended charge might not be essential in view of the Supreme Court's
holding in the Consolidated Edison case.' In ruling upon the amendment I con-
strued the letter of November 8, and ensuing order as either an appropriate amend-
ment by the Regional Director prior to the opening of the hearing, or as a motion
to amend the complaint addressed to the Trial Examiner, which I granted subject
to 'a reasonable time within which Local 810 and the parties might prepare their
respective cases. Accordingly, the hearing, with the consent of counsel, was
thereupon continued until December 9, 1957. On the latter date the hearing was
resumed and concluded on December 12. All the parties were represented by
counsel and were afforded opportunity to be heard, to introduce relevant evidence,
to present oral argument and to file briefs. At the conclusion of the General
Counsel's case, counsel for the Respondent moved to dismiss the complaint, which
I granted in respect to those portions of the complaint alleging the Respondent
had unlawfully refused to bargain with Local 66, for the reason that the General
Counsel failed to establish that Local 66 had been designated as the bargaining
representative by a majority of the employees in the unit alleged. Counsel failed
to file briefs.
After the close of the hearing the General Counsel filed a motion to withdraw
the complaint, dated January 10, 1958, on the basis of a settlement agreement
providing for the..posting_of.. notices and an offer of reinstatement. to. -Mary Boza,
plus $150 for any loss she may have sustained by reason of her discharge. The
settlement agreement was signed by all parties, except Local 66, and was approved
by the Regional Director.2 On January 20, I duly notified all counsel and Local 66,
that oral argument would be held on the General Counsel's motion to withdraw
the complaint on January 30, 1958, at a designated time and place at New York
City. Counsel for the General Counsel and the Respondent appeared at the oral
argument but counsel for Local 66 neglected to make an appearance. At the
conclusion of the argument I denied the motion.3
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT - -
1. THE COMPANY 'S BUSINESS
The parties stipulated that the Company, a New York corporation, maintains its
office and place of business in New York City where it is engaged in the manu-
facture, sale, and distribution of leather covered and metal buckles, covered
novelties, and related products. During the year ending September 30, 1956, the
Company manufactured, sold, and distributed products valued in excess of $190,000,
of which products valued in excess of $43,000 were shipped directly to customers
in States other than the State of New York, and products valued at more than
$57,000 were furnished to companies, each of whom annually produces, ships,
and delivers goods, or furnishes services, valued in excess of $50,000 outside the
State wherein the particular company is located. The Company concedes the
interstate character of its operations. I find the Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.4
IT. THE LABOR ORGANIZATIONS INVOLVED
Local 66, Local 1614, and Local 810, are each labor organizations within the
meaning of Section 2(5) of the Act.
i Consolidated Edison Company of New York, et at . v. N.L.R.B., 305 U.S. 197, 231-239.
2 The agreement which was received in evidence as part of Trial Examiner's Exhibit
No. 1 is neither dated nor signed, so I am substituting an executed copy of the agreement
which was filed with me in lieu of the document actually received in evidence.
3It was the General Counsel's position that if the motion was granted the Regional
Director would withdraw the complaint then dismiss the charge, thereby preserving the
Charging Party's right of appeal. I denied the motion for the reason that Section 102.9
of the Board's Rules and Regulations provides that after hearing the charge may be
withdrawn "upon motion with the consent of the Trial Examiner" and the Board has
held such motion must be filed by the Charging Party. (Chauffeurs, Teamsters, Ware-
housemen and Helpers Local No. 135, etc. (Marsh Foodliners, Inc.), 114 NLRB 639, 640,
footnote 1.. See also, Marine Engineers Beneficial Association No. 13 (Taylor C Anderson,
et al .) v. N.L.R.B., 202 F. 2d 546 (C.A. 3).)
4 The Brass Rail.. Inc., 110 NLRB 1656; Pacific Fine Arts, 116 NLRB 1607.
LOUIS ROSENBERU, INC.
III. THE UNFAIR LABOR PRACTICES
1459
A. The agreements between the Company and Local 1614 and Local 810
Norman Rosenberg, secretary-treasurer of the Company in charge of the business,
stated that the Company and Local 810 had a collective-bargaining agreement
covering all its employees, exclusive of office and clerical help, salesmen, and
nonworking supervisory employees, effective from June 5, 1953, to June 15, 1954.
On June 16, 1954, the parties executed an agreement providing for a general wage
increase of 5 cents per hour and maintaining in effect all other terms in the above
agreement until June 15, 1955. On May 24, 1955, the parties signed a similar
agreement extending the contract to June 15, 1956. However, on June 14, 1955,
the Company and Local 1614 executed a complete agreement, containing a union-
security clause and checkoff of union dues, covering the employees in the unit
described above, effective until midnight June 14, 1956. The original agreement
between the Company and Local 810, the first extension thereof, and the agree-
ment between the Company and Local 1614, were signed by Rosenberg and Milton
Silverman as representative of the respective locals and the shop committee.
B. The pleadings in respect to the succeeding agreements and the
alleged refusal to bargain with Local 66
The complaint, as amended, alleges that sometime subsequent to August 17,
1956, the Company and Local 1614, executed an agreement covering all its em-
ployees, excluding office and clerical employees, a chauffeur, salesmen, guards,
professional employees, and supervisors although Local 1614 had not been desig-
nated as the representative by a majority, or an uncoerced majority, of the em-
ployees in that unit or a unit including the chauffeur. There is also an allegation
that sometime subsequent to August 17, 1956; the Company and Local 810 ex-
ecuted an agreement covering one chauffeur although Local 810 had not been
designated by the chauffeur and that the unit was an inappropriate one for the
purpose of collective. bargaining. Each of - the agreements contained a union-
security clause.
The amended complaint further alleges that on and after August 17, 1956, the
Company refused to bargain collectively with Local 66, which had been selected
by a majority of the employees in an appropriate unit consisting of all employees,
exclusive of office clerical employees, salesmen, guards, professional employees,
and supervisors as defined in the Act.
These allegations are generally denied in answers filed by the Company, Local
1614 and Local 810.
C. The evidence on these issues
Rosenberg testified that about 2 weeks prior to the expiration of the contract,
June 15, 1956, Henry R. Malamy, representative for Local 1614 came to his office
and presented demands for a new agreement, which they discussed. Malamy also
stated that the chauffeur should be a member of Local 810, which was satisfactory
to the chauffeur, and Rosenberg replied it made no difference to him, except that
any benefits obtained by the other employees would be given to him. The mem-
bers of the shop committee, Josephine Johnson, Mary Boza, and Vera Baker, were
then called in and the discussion of the demands continued. It is not clear just
how the meeting ended. Nothing further occurred until the afternoon of June 14,
when Malamy telephoned Rosenberg to explain that he had been unable to see
him and since the contract was about to expire he wanted to discuss the matter
that day. Rosenberg told him he could not come to the plant because the em-
ployees had been sent home early (because of a subway strike) and suggested they
meet the first thing in the morning. Malamy said he could not meet at that time,
so they agreed to meet at Malamy's_office that evening, which they did, without
the shop committee being present. Rosenberg first testified the only reason for the
meeting was to sign an extension of the agreement, that "We didn't actually
discuss anything" and the committee members did not attend because this was not
a negotiating session. Later he said he and Malamy went over the terms on which
they were in agreement as well as those not agreed upon and Malamy had an
agreement drawn up, dated June 14, 1956, which they signed. This agreement
provides for the extension of the contract to June 15, 1957, a higher hourly start-
ing and minimum rate, arbitration of unresolved issues pertaining to general wage
increases, night shift differential, holidays and vacations, and that all other terms
in the prior agreement remain the same. The agreement bears the signatures of
Silverman and Johnson as shop steward. Rosenberg admitted Silverman did not
sign the extension agreement in his presence and he was not questioned in regard
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Johnson's signature . Although Local 810 had no contract with the Company
at that time , an agreement was signed by Rosenberg and Malamy containing the
same language as the agreement with Local 1614, except that it specifies the pay
rate for the chauffeur and excludes the provision setting forth the issues to be
arbitrated. However, the parties agreed that the arbitrator's award should be
effective insofar as the chauffeur was concerned. The agreement also bears the
signature of Silverman , as president of Local 810, but he did not sign in Rosen-
berg's presence. Rosenberg stated he received both agreements signed by Silverman
a day or so after he had signed them , and specifically denied Silverman signed
the agreements after August 17.
In substance , Silverman testified he signed agreements in the past with the
Company for both Local 1614 and Local 810, and since the extension agreements
were dated June 14, he probably signed them on that date or the following day.
On June 15 Rosenberg met with Malamy and the committee at which time they
discussed a general wage increase, night differential, and additional holidays and
vacations. The subject of a pension plan was also brought up but rejected by the
Company. Since Rosenberg had automatically raised the pay rate of employees in
some classifications to meet the requirements of the minimum wage law, and he
had to pay that rate to newly hired employees, he agreed with Malamy and the
committee that experienced employees in those classifications should be paid 5 cents
an hour above the minimum rate. Rosenberg was not certain whether any mention
was made of the extension agreements at the meeting. There is no evidence
concerning the manner in which the meeting concluded.
About August 14, Rosenberg, Malamy and the shop committee appeared at a
hearing held before an arbitrator of the New York State Mediation Board on the
unresolved issues outlined above and sometime thereafter the arbitrator entered
his award in the matter.5 Rosenberg said that the subject of the extension agree-
ment was brought out at the hearing. He also stated that the Company may have
signed a complete agreement after the issuance of the award.
Boza was employed by the Company for about 12 years prior to her discharge
on August 15, 1956, and was, and had been for several years, a member of the
shop committee during 1956. She stated that in April or May 1956, Malamy and
the committee met with Rosenberg for the purpose of negotiating a new agreement
and that they discussed wage increases, vacations, and a few other items. Rosen-
berg told the group he could not grant any of these requests and the meeting
apparently ended. Boza did not see Malamy until June 15, when he came to the
plant and he and the committee met with Rosenberg. The contract was again
discussed but no agreement was reached and Rosenberg asked them to go along
with him for another year. Malamy and the committee then left and a meeting
of all the employees was held in the rear of the plant at which time Malamy
asked the workers to accept an increase covering the lower paid employees, but
not the older employees. When the workers expressed dissatisfaction with the
suggestion Malamy told them the only alternative was arbitration.. The employees
voted on the question and decided in favor of arbitration of the matter. Malamy
stated they would be working without a contract and the meeting ended. On
July 15, Malamy came to. the plant and informed Boza he would ask Rosenberg
for a general wage increase of 5 cents an hour if it was all right with her and
she told him to talk to the employees, which he did. Some of the workers asked
Boza about the increase, so she reported the matter to Johnson, the shop steward.
Johnson went to Malamy, who was at the door of the office, and he came back
to where the employees had gathered. The workers then voted on whether it was
a 5-cent increase or arbitration and a majority voted in favor of arbitration. On
August 14, Malamy came to the plant and when the employees again voted for
arbitration Malamy told Johnson, Baker, and Boza the arbitration hearing was set
for that morning and to attend the hearing with him. This group and Rosenberg
were present at the hearing but were unable to reach any agreement so the ar-
bitrator was to decide the matter. Although Boza knew that previous contracts
had been extended by agreement of the parties she did not know or learn of any
extension of the 1955-56 contract until about August 17.
Alfonso Yambay. an employee and a member of Local 1614, testified substan-
tially the same as Boza in respect to the meeting of the employees with Malamy
on June 15, and added that Malamy told the employees if they wanted arbitration
they would be working without a contract. He also stated that on August 14,
a Although I denied motions to quash subpoenas rluces tecunt. served upon the Company
and Local 1114 to produce the award and overruled company counsel's objection to
questioning Rosenberg on this subject, the General Counsel did not pursue the ;natter
beyond this point.
LOUIS ROSENBERG , INC. 1461
Malamy met with the employees at the plant and offered them a 5-cent an hour
increase. When the employees refused to accept the offer, Malamy stated they
would have to go to arbitration. Yambay said the first time he heard of any
agreement between the Company and Local 1614 was about August 20, when the
Company posted a sign to the effect while the employees were engaged in a strike
sponsored by Local 66, under circumstances set forth below. He stated he first
saw the contract on August 23, when Malamy presented it to the employees at
a meeting held in connection with the strike. When the employees asked why
he had not shown them the contract on June 15, Malamy gave no direct answer
and stated the meeting was called for another purpose.
Neither Malamy nor Johnson testified at the hearing.
D. The discharge of Boza and subsequent events
Boza testified that in early August the employees were dissatisfied with Local 1614
because Malamy had not been to the plant, so on August 10, she and another em-
ployee, Beatrice Meyers, went to Local 66 and spoke to Morris Fudin and Murray
Gross, manager-secretary of the Local. As a result of their visit Gross scheduled
a meeting for the employees for the evening of August 15.
Boza reported for work as usual on August 15, and about 11 o'clock in the
morning Foreman Joseph Rifkin told her to report to Rosenberg. Boza went to
the office where she met Rosenberg, Johnson, Baker, and Ira Rosenberg. Rosen-
berg asked her if she was attempting to bring in a new union and trying to get
the employees to attend a union meeting set for that day. Boza stated she had
heard rumors to that effect and when Rosenberg inquired if it was true, she an-
swered it was not. Rosenberg told her to change her clothes, that she was fired,
and instructed Rifkin, who had entered the office, to accompany her to the ladies'
room, not let her speak to anyone and bring her back to the office to be paid off.
Rifkin carried out these instructions and Boza was discharged. That evening Boza
met some of the employees as they were leaving the building and they asked if
she was still going to the union meeting. Boza said she was going, so she and
eight other employees went to the office of Local 66 and met Gross who discussed
and showed them a Local 66 contract. The nine individuals then signed ap-
plication cards for membership in Local 66.
On August 16, Boza went to the building where the plant was located and met
some employees who told her the workers had held a meeting and would not
return to work unless she was reemployed.
On August 17, she stated about 19 or 20 employees, out of 30 or 35 employees,
picketed in front of the building and continued to picket for about 7 weeks.
Yambay stated that about 11:50 the morning of Boza's discharge Rosenberg
called a meeting of all the employees and announced he had fired Boza under
authorization of Local 1614 and if anyone wanted to follow Boza he or she could
do so. Yambay asked the reason for Boza's discharge and Rosenberg replied she
was trying to bring another union into the shop and that he disagreed with her
action because he knew Local 1614 was a better union for the employees. After
talking to some of the employees Yambay inquired if Rosenberg would reinstate
Boza provided they were willing to forget about Local 66 and he stated he would
not reinstate Boza under any circumstances, that he would shut down before doing
so. An argument ensued between Yambay and Rosenberg during which he ac-
cused Yambay of being Boza's assistant, that he should be fired and the meeting
finally ended. The next day Yambay worked for about 4 hours, only nine em-
ployees reported, then went home. Later he went to the office of Local 66 where
he met Boza and some other employees. After talking to union officials, a
majority of the employees decided not to return to work unless Boza was rein-
stated and to go along with Local 66, rather than Local 1614. On August 17,
the employees went on a strike which lasted for about 7 weeks.
Gross said he talked to Boza and other employees on August 15, and introduced
them to George Triestman, business agent and organizer for Local 66. Triestman
testified he spoke to the employees on August 15 and 16, and that 19 of them
signed applications for membership, which he turned over to Gross. On August 17,
Gross telephoned Rosenberg to inform him that he represented a majority of the
employees and requested that he meet with him. Rosenberg said he was dealing
with another union and would contact him later. Rosenberg made no mention of
any agreement with Local 1614. Shortly thereafter Malamy called Gross and
gave him an argument for bothering Rosenberg. The same day Gross sent a
letter to Rosenberg confirming his telephone conversation and requesting a meeting
for the purpose of discussing an agreement. A few days later Gross received a
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter from Rosenberg, dated August 20 stating that the Company had an agree-
ment with Local 1614, which did not expire until June 15, 1957.
Rosenberg said that on August 15, he discussed Boza's activities with Johnson
and Baker, of the union committee, and they agreed to her discharge. He then
called in Boza and fired her, in the presence of the committee and possibly Rifkin,
for the reason, as he explained to her, that she was soliciting for another union,
during working hours, which he did not believe to be right because the Company
had an agreement with Local 1614. Admittedly, the Company had no rule re-
garding solicitation. Shortly thereafter, Rosenberg called a meeting of the em-
ployees and advised them that Boza had been discharged for trying to bring in
another union, which was wrong for she knew the Company had an agreement
with Local 1614 and had attended an arbitration hearing the day before. He
further stated that if any of the employees agreed with Boza and did not like
working for the Company, they were free to leave.
On August 16, the employees picketed at the freight and passenger entrances of
the building. On August 17, Gross telephoned Rosenberg to state he represented
a majority of the employees and requested a meeting with him. Rosenberg an-
swered he had an agreement with another union, that he could not negotiate with
him, but would call him back. Rosenberg notified Malamy, who came to the
plant, whereupon Rosenberg called Gross and repeated his previous position. He
then gave the phone to Malamy who stated he represented the union having the
agreement with the Company. Rosenberg admitted an exchange of letters with
Gross concerning the representation of the employees.
E. The strike
As appears above, Boza and Yambay said the strike lasted about 7 weeks and
Rosenberg estimated picketing continued for some 2 weeks. Rosenberg testified
that the Company filed a complaint against Local 66 and the strikers for injunctive
relief in the Supreme Court of the State of New York, New York County. Ac-
cording to the undisputed statement of counsel for the Company, the complaint
was filed about August 27, 1956. Thereafter oral argument was had on some
unspecified date and later the Court issued an opinion, again the date is not
stated, granting an injunction pendente lite. On September 24, the Court entered
its order in the case. Company counsel stated, without challenge, that picketing
ceased the date the opinion was handed down, whatever date that was.
Boza could not recall the wording of the picket signs but 'admitted she signed an
affidavit in connection with the State court proceedings to the effect that the em-
ployees were on strike "to better their lot and to protest my discharge." After
examining a photograph of the picket scene, Boza said one of the signs read "on
strike for better conditions" Local 66. In substance Boza testified she would not
have returned to work unless the Company recognized Local 66, because she
believed she needed protection in her job.
Yambay stated that at a meeting on August 16, the employees agreed to strike
to secure the reinstatement of Boza and recognition of Local 66. He further
stated that he performed picket duty and that 2 signs were carried; I contained
the phrase "unfair labor practice" and the other "better working conditions."
Gross testified that Boza's discharge caused the strike and if the Company had
been willing to reinstate her Local 66 would have petitioned the Board for an
election. In its answer filed in the State court action, executed by Gross, Local 66
averred that a majority of the employees were on strike in protest of the Com-
pany's "unfair labor practices and to obtain better wages, hours and other working
conditions." According to the answer the placards carried by the pickets read:
WORKERS OF
LOUIS ROSENBERG, INC.
395 Broadway
ON STRIKE
For Better Conditions
EMBROIDERERS UNION
Local 66, I.L.G.W.U.
A.F. of L. C.I.O.
225 W. 39th St.
1. The offer of reinstatement to the strikers
Rosenberg asked the strikers to return to work when they came in for their pay
on August 17, and later authorized Malamy to make similar offers to them.
LOUIS ROSENBERG, INC. 1463
Boza said that about 1 week after the commencement of the strike Malamy
called a meeting of the striking employees at the office of Local 1614, and prac-
tically all the strikers attended as well as a representative of Local 66. Boza
testified that Malamy "said a lot of things," but she could not remember just
what he did say, other than to offer the strikers a pay increase. She could not
recall whether Malamy announced he was authorized to offer reinstatement to the
strikers at the same rate of pay and without loss of seniority.
Yambay attended the above meeting, held about August 23, at which time
Malamy told the strikers that while he did not consider them as employees and
did not care what happened to them, he was authorized by Rosenberg to offer
them reinstatement. Malamy then "read out the union membership cards of all
of us and our addresses," for the purpose of sending out union newspapers, but he
did not mention Boza's name.
2. The demand of Local 66 for reinstatement of the strikers
Rosenberg conceded that he received a letter, dated September 24, 1956, from
counsel for Local 66, wherein application for reinstatement was made on behalf
of 21 striking employees, including Boza. Counsel stipulated the Company did
not reinstate any of the strikers.
F. The appropriate bargaining units and the representative
of the employees
In substance the amended complaint alleges that Local 1614 did not represent
a majority, or an uncoerced majority, of all the employees, with the usual ex-
clusions, when it signed an agreement with the Company sometime after August 17,
1956. The amended complaint also alleges that a unit consisting of a single
chauffeur, as specified in the agreement with Local 810, executed sometime after
August 17, is inappropriate for the purposes of collective bargaining.
On the basis of the record I find that a unit consisting of all employees, ex-
cluding office clerical employees, salesmen, guards, professional employees, and
supervisors is appropriate for the purposes of collecting bargaining. I am of the
opinion, and find, that the foregoing unit excluding the chauffeur is also an ap-
propriate unit. The General Counsel contends that the Company's agreement
with Local 810 is invalid for the reason that the unit of a single employee is
inappropriate. While it is true the Board will not certify a union, or direct an
election, in a unit involving but one employee 6 there is nothing in the Act which
prohibits an employer and a union from entering into an agreement covering a
single employee.
Rosenberg submitted an affidavit in support of the injunction action wherein he
stated that the employees commenced picketing on August 16, and at that time the
Company had 27 employees in its shop, 4 in the receiving and shipping depart-
ment , all included in the agreement with Local 1614, and 1 chauffeur covered by
the contract with Local 810. Rosenberg explained that while the affidavit reflects
the number of employees working that day, he did not check the payroll to ascer-
tain the precise number of employees thereon nor the exact number of employees
working that date. The payroll and daily timecards of the Company, for the
period August 8 through August 21, were produced at the hearing and examined
fully by counsel. These records disclose that during this period the Company had
52 employees in the foregoing unit or units.7 According to Rosenberg all of the
employees, with the exception of four who had been employed for less than
30 days, were members of Local 1614 or Local 810, at that time. Rosenberg
also produced dues checkoff authorizations for Local 1614, signed by 28 employees
covering the period June through August 1956.8
As already stated I granted the Company's motion to dismiss the alleged re-
fusal to bargain with Local 66, for the reason that Local 66 did not represent a
majority of the employees on and after August 17, when it requested recognition.
In opposing the motion the General Counsel argued that Local 66 had established
its majority for, according to Rosenberg's affidavit, there were 32 employees in the
unit, and it produced 19 applications for membership signed by employees in the
6 Producers Rice Hill, Inc., 106 NLRB 119, 122.
7 The records show the number of employees who actually worked on the respective
dates as follows : August 8, 40; August 9, 42; August 10, 40; August 13, 39; August 14,
39; August 15, 30; August 16, 22; August 17, 13; August 20, 20; and August 21, 22.
Rosenberg said about 20 percent of the total working force was usually absent.
8 The authorizations were not offered in evidence by the General Counsel.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit . While the averments in Rosenberg 's affidavit might be considered as a factor
in determining the number of employees in the unit , they are by no means con-
clusive or controlling of the issues . In view of Rosenberg 's explanation of his
affidavit and the payroll and daily timecards of the Company, I find that there
were 52 employees in the unit and Local 66 had not been designated as the bar-
gaining representative by a majority of the employees therein. I find that the
evidence fails to support the allegations of the complaint that Local 1614 and
Local 810, did not represent a majority of the employees in the units described
above. On the contrary I find that Local 1614 and Local 810 were the duly
designated representatives in the respective bargaining units at all times material.
Concluding Findings
Rosenberg conceded Boza was discharged because of her activities on behalf of
Local 66. I, therefore, find that by discharging Boza for that reason the Company
violated Section 8(a)(3) and (1) of the Act. By interrogating Boza concerning her
activities in respect to Local 66, I find the Company violated Section 8(a)(1) of
the Act. Company counsel contends that since Boza was offered reinstatement
by Malamy, who was authorized to do so by the Company, it should not be
required to make another offer of reinstatement to her. The testimony of Yambay
reveals that Malamy called a meeting of the strikers around August 23, at the
office of Local 1614, at which time he declared he was authorized to offer rein-
statement to the strikers and then called out their names and addresses, for the
purpose of sending union newspapers to them. Yambay specifically stated that
Boza's name was not even mentioned at the meeting. On the basis of Yambay's
undisputed testimony, I find no valid offer of reinstatement has been made to Boza.
Shortly after Boza's discharge, Rosenberg informed the employees Boza had
been discharged for attempting to bring in another union and if they were in
agreement with Boza, they could leave the Company. Yambay testified to the
same effect and added that Rosenberg announced he would shut down the plant
before reinstating Boza. I find that by engaging in this conduct the Company
violated Section 8(a)(1) of the Act.
Having found that Local 1614 and Local 810, were the statutory representatives
of the employees in appropriate units, the next question to be determined is
whether a preponderance of the evidence supports the General Counsel's position
that the agreements were not executed until sometime after August 17, 1956.
The only evidence as to the date of the execution of the agreements comes from
Rosenberg and Silverman. Although Rosenberg definitely stated he and Malamy
signed the agreements on June 14, portions of his testimony are inconsistent.
Thus, at the outset of his testimony he said his meeting with Malamy was for the
sole purpose of signing extension agreements , therefore the shop committee was
not present, nevertheless they did discuss contract terms and finally agreed on the
issues to be submitted to arbitration. Again, while the agreement with Local 1614
bears the signature of Shop Committee Member Johnson, there is no testimony
as to when she actually signed, but then Rosenberg was not questioned on this
point. Silverman said he executed the agreement about June 14 or 15. Both
Boza and Yambay testified they first heard of the extension agreements after
August 17, and Rosenberg was not sure whether that fact was mentioned at the
meeting of June 15, with Malamy and the shop committee. However, Rosenberg
was certain that he received the executed agreements from Silverman a day or
so after he signed them and the fact that the agreements had been executed was
brought out at the arbitration hearing held on August 14. Despite the presence
of some inconsistencies and vagaries in Rosenberg's version of the events, the
undisputed testimony reveals that the agreements were signed about June 15, and
I so finds I further find that while the agreement with Local 810 may purport
to be an extension of a nonexistent contract and may not have been artfully
worded, it was a valid collective-bargaining agreement between the Company and
Local 810 covering wages for the chauffeur.
I find no evidence to sustain the allegations of the amended complaint that the
Company gave unlawful assistance and support to Local 1614 and Local 810, or
rendered financial or other support to these organizations in violation of Sec-
tion 8(a)(2) of the Act.
g The General Counsel makes no contention, either by allegation in the amended com-
plaint or statement at the hearing, that Local 1614 failed to comply with the provisions
of Section 8(d) of the Act in respect to the termination, modification, or extension of
the contract.
LOUIS ROSENBERG, INC. 1465
The Company contends that the employees engaged in the strike in violation of
the no-strike clause of the agreement with Local 1614, and since the purpose
thereof was to secure reinstatement of Boza and recognition of Local 66, the
strike was not an activity protected by the Act.
The agreement, which I have found was extended about June 15, provides:
During the term of this agreement there shall be no strikes, sit-downs, work
stoppages or lockouts, unless either party shall refuse to arbitrate as set forth
herein, or abide by an arbitrator's award, in which event the other party
shall not be bound by the terms of this paragraph.
From the evidence I find that Boza's discriminatory discharge on August 15,
prompted the employees to strike the following day. It is also clear, from the
testimony of Boza and Yambay, and I find, that from the outset the purpose of
the strike was to obtain reinstatement of Boza and recognition of Local 66. Al-
though Local 66 did not initiate the strike, it immediately sponsored and supported
the cause of the strikers.
The Board, under the Scullin-Dyson doctrine,10 has held that economic strikes in
violation of no-strike contract clauses are not protected activity. In those cases the
Board noted the absence of prior breach of contract or unfair labor practices on the
part of the employer. Later, in Mastro Plastics Corp." the respondent contended
that any strike during the term of a no-strike contract clause, breached the agree-
ment and was therefore not entitled to the protection of the Act, under the Scullin-
Dyson doctrine. The Board found that the strike, unlike those in the Scullin-Dyson
cases, was caused and prolonged by the respondent's unfair labor practices and the
no-strike provision did not indicate an intention by either party to waive the usual
right of self-help to correct abuses "unrelated to the actual operation of the con-
tract or the normal relationship of the parties but arising . . . from a willful and
serious violation of law designed to destroy the very foundation of that contract
and that relationship." The Board held that under the circumstances the no-strike
clause did not contemplate or incorporate a waiver of strike action on the part of
the employees and the strike was an activity protected by the Act. The Board's
order was enforced by the Court of Appeals for the Second Circuit.la The Supreme
Court in affirming that decision stated, ". . . we conclude that the contract did not
waive the employees' right to strike solely against the unfair labor practices of
their employers." 13
Here the objective of the strike was twofold, to protest the unfair labor practice
committed by the Company in discharging Boza and to compel the Company to
recognize a minority union when the Company had a valid agreement with another
labor organization. Considering the strike in the light of the foregoing decisions,
I conclude that the dual purpose of the strike distinguishes this case from Mastro
Plastics, for there the Supreme Court specifically held that a no-strike clause did not
waive the employees' right "to strike solely" against the unfair labor practices of
their employers. Accordingly, d find the strike was not an activity protected by
the Act.14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section II, 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 ob-
structing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent has engaged in interrogation of employees
10 Scullin-Steel Company, 65 NLRB 1294; Joseph Dyson 4 Sons, Inc., 72 NLRB 445.
u 103 NLRB 511, 513-515.
214 F. 2d 462.
13Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 279-284.
14 Although not necessary under these findings, I find that Yambay's testimony, while
fragmentary and Incomplete, is sufficient to warrant the inference that Malamy, on be-
half of the Company, offered reinstatement to the strikers at the meeting held on
August 23, which offer obviously was refused.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning Local 66, and has interfered with, restrained , and coerced its employees
in derogation of their rights secured by Section 7 of the Act, I shall recommend
that it cease and desist therefrom.
Having found that the Respondent on August 15, 1956, discriminatorily dis-
charged Mary Boza and has since failed to reinstate her, I shall recommend that
the Respondent be ordered to offer her immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her seniority and
other rights and privileges, and make her whole for any loss she may have suffered
because of the discrimination against her by payment of a sum of money equal to
the amount she normally would have earned as wages from the date of the dis-
crimination to the date of the offer of reinstatement , less her net earnings during
said period, with back pay computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth, 90 NLRB 289. The Respondent shall
upon request make avaiable to the Board or its agents payroll and other records
to facilitate the checking of the amount of back pay.
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. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 66, Local 1614 and Local 810, are each labor organizations within the
meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Mary Boza the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor practices in violation of
Section 8 (a)(2) and (5) of the Act , as alleged in the complaint as amended.
7. The Respondent has not engaged in unfair labor practices in violation of
Section 8 (a) (3) and (1) of the Act, by refusing to reinstate the strikers as alleged
in the complaint as amended.
[Recommendations omitted from publication.]
Westinghouse Electric Corporation and International Union of
Electrical, Radio and Machine Workers , AFL-CIO. Case No.
6-CA-116f. February 16, 1959
DECISION AND ORDER
On August 11, 1958, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of Section 8( a) (5) and (1) of
the Act, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the ruling of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
122 NLRB No. 173.