Marcus Bros.

National Labor Relations Board - Board Decisions

Mar 5, 1959

123 N.L.R.B. 33 (N.L.R.B. 1959)

MARCUS BROS. 33
As we have overruled the objections to the election and as the tally
of ballots shows that the Petitioner received a majority of valid ballots
cast, we shall certify the Petitioner as the 'collective-bargaining rep-
resentative of the employees in the appropriate unit.
[The Board certified International Association of Machinists,
AFL-CIO, as the designated collective-bargaining representative of
all employees in the appropriate unit.]
Habib Marcus, d/b/a Marcus Bros. and Amalgamated Plastic
Toys & Novelty Workers, Local 44, I.B .P.M.O.E ., Ind. Case
No. ?-CA-5888. March. 5,1959
DECISION AND ORDER
On November 18, 1958, Trial Examiner Arthur E. Reyman 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 he cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.
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 Rodgers, Jenkins, and Fanning].
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 Interme-
diate Report, the exceptions, and the brief, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the modifications and additions noted below.'
1. We agree with the Trial Examiner that the Respondent violated
Section 8(a) (5) and (1) of the Act by unlawfully refusing to bargain
i we hereby correct the following inadvertent errors in the Intermediate Report, none
of which affects the Trial Examiner 's conclusions or our concurrence therein: (1) The
names of Salvatore Iannucci , Esq., and Aleja de Leon were misspelled ; ( 2) there is no
evidence that Mr. Iannucci asked to compare the union authorization cards with the
Respondent' s records ; ( 3) Antonia Morales did not testify that Marcus ' antiunion re-
marks were translated into Spanish at his request; (4) there was no evidence that Maria
Lopez Customarily translated work instructions to the other girls in the shop; (5) Victor
Cavallo did not testify at the hearing ; ( 6) Marcus testified that Cavallo, not Zulferino,
gave izim a business, card ; and (7) Olga Flores Velez was not sure when , she signed the
Respondent 's union repudiation petition.
123 NLRB No.1.
508889--60-vol . 123-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union.2 The Respondent contends that (a) the Union is
not a labor organization as defined by the Act for want of employee
participation, and (b) the Union lacks majority status because a
majority of the employees signed a petition repudiating the union.
As to (a), the record shows that the Union exists for the purpose of
dealing with employers concerning wages, hours, and conditions of
employment, and secured membership applications from a majority
of the employees in the unit. We therefore agree with the Trial
Examiner's finding that the Union is a labor organization for the pur-
poses of the Act.' As to (b), we find, in any event, that such dissipa-
tion of the Union's majority as may have taken place was the result
of the Respondent's unfair labor practices.'
2. We also agree with the Trial Examiner that the Respondent
independently violated Section 8(a) (1) of the Act by (a) interro-
gating employees in an unlawful manner concerning their union
activities and sympathies; (b) threatening employees with discharge
if they supported the Union; (c) threatening to close the plant if the
employees supported the Union; (d) promising and granting wage
increases and other benefits to discourage membership in the Union;
(e) warning employees not to support the Union; and (f) initiating
and soliciting employee signatures to a petition repudiating the
Union .5
THE REMEDY
Since the violations of the Act which the Respondent committed are
persuasively related to other unfair labor practices proscribed by
the Act, and the danger of their commission in the future is to be
anticipated from the Respondent's conduct in the past, the preventive
purposes of the Act will be thwarted unless the order is coextensive
with the threat. Therefore, in order to make more effective the inter-
dependent guarantees of Section 7 of the Act, to prevent a recurrence
of unfair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of
the Act, we will order that the Respondent cease and desist from
infringing in any manner upon the rights guaranteed in Section 7
of the Acts
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
2 See Joy Silk Mills, Inc. v. N .L.R.B., 185 F. 2d 732 (C.A., D.C. ), cert. denied 341 U.S.
914.
3 Ingersoll -Rand Company, 119 NLRB 601.
* Joy Silk Mills v. N.L.R.B., supra, p. 744.
6Jack Gordon et at., d/b/a Ivy Hill Lithograph Company, and Record Packaging Cor-
poration, 121 NLRB 831.
6 I. Taitel and Son, 119 NLRB 910, 913 , enfd. 261 F. 2d 1 (C.A. 7).
MARCUS BROS. 35
Board hereby orders that the Respondent, Habib Marcus, d/b/a
Marcus Bros., New York, New York, his agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively in good faith concern-
ing wages, hours, and other terms and conditions of employment
with Amalgamated Plastic Toys & Novelty Workers, Local 44,
I.B.P.M.O.E., Ind., as the exclusive bargaining representative of
all his employees in the following appropriate unit : All production
and maintenance employees employed at the Respondent's New York,
New York, plant, excluding office clerical employees, professional
employees, guards, and supervisors as defined in the Act.
(b) Interrogating employees concerning their union membership
and activities in a manner constituting interference, restraint, or
coercion, in violation of Section 8(a) (1) of the Act; threatening
employees with discharge, or plant closure, or other reprisals if they
support the above-named Union, or any other labor organization;
promising and granting employees wage increases and other benefits
to discourage union membership; initiating and soliciting employee
signatures to petitions repudiating the above-named Union, or any
other labor organization.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Amalgamated Plastic Toys &
Novelty Workers, Local 44, I.B.P.M.O.E., Ind., or any other labor
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment 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) Upon request, bargain collectively with the above-named
Union as the exclusive bargaining representative of all the employees
in the appropriate unit, and embody in a signed agreement any
understanding reached.
(b) Post at its office in New York, New York, copies of the notice
attached hereto marked "Appendix A." I Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by the Respondent or his representative, be posted
7In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, 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."
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondent immediately upon receipt thereof and maintained
by him for 60 consecutive days thereafter in conspicuous places,
including all places Where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Second Region in writing,
within 10 days from the date of this Order, What steps the Respondent
has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that:
I WILL NOT interrogate any of my employees concerning their
membership in, or activities on behalf of, Amalgamated Plastic
Toys & Novelty Workers, Local 44, I.B.P.M.O.E., Ind., or any
other labor organization, in a manner constituting interference,
restraint, or coercion, in violation of Section 8 (a) (1) of the A'ct ;
threaten my employees With discharge or other reprisals if they
support the above-named Union or any other labor organization;
make threats to close the plant if the employees designate the
above-named Union, or any other labor organization, as their
collective-bargaining representative; promise or grant wage in-
creases or other benefits for the purpose of discouraging member-
ship in the above-named Union or any other labor organization;
initiate or solicit employee signatures to petitions repudiating the
above-named Union or any other labor organization; or warn my
employees not to support the above-named Union or any other
labor organization.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist Amalgamated
Plastic Toys & Novelty Workers, Local 44, I.B.P.M.O.E., Ind.,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other aid or
protection, and to refrain from any or all of such activities, ex-
cept 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 in Section 8(a) (3) of the Act. All
my employees are free to become or remain members of this Union
or any other labor organization.
MARCUS BROS. 37
I WILL bargain collectively upon request with the above-named
Union as the exclusive bargaining representative of all employees
in the bargaining unit described herein, with respect to rates of
pay, hours of employment, or other conditions of employment, and
if an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is :
All production and maintenance employees at the New
York, New York, plant, excluding office clerical employees,
professional employees, guards, and supervisors as defined in
the Act.
HABIB MARCUS, D/B/A MARCUS BROS.,
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended, 61 Stat. 136, 29 U.S.C., Sec. 151 et seq., herein called the Act. The
proceeding arises upon the filing of a complaint on June 23, 1958, against Habib
Marcus, doing business under the name and style of Marcus Bros. (hereinafter some-
times called the Respondent or the Employer), by the General Counsel of the Na-
tional Labor Relations Board, on behalf of the Board, by the Regional Director for
the Second Region. The issuance of the complaint followed the filing of a charge of
unfair labor practices alleged to have been engaged in by the Respondent: the first or
original charge, filed with the Regional Director on April 17, 1958, asserted that
certain unfair labor practices had been and were being engaged in by the Respondent,
and a first amended charge filed with the Regional Director on June 19 1 set forth
the same substantial alleged facts of violations of Section 7 and Section 8(a)(1) and
(5) of the Act.2 (The complaint alleges violation of Section 8(a) (3). No proof was
offered by counsel for the General Counsel in this respect.)
The complaint sets forth that the Respondent did, on or about March 13, interro-
gate his employees concerning their membership in and their activities on behalf of
the Union; 3 warned them to refrain from becoming members of the Union or giving
1 Unless otherwise specifically noted, all dates herein mentioned are for the year 1958.
2 These provisions of the Act are .as follows :
RIGHTS OF EMPLOYEES
SEC. 7. Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have the right to
refrain from any or all of 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 in section 8 (a) (3).
UNFAIR LABOR PRACTICES
SEC. 8 (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 ;
s w • s s • •
(5) to refuse to bargain collectively with the representatives of his employees, sub-
ject to the provisions of section 9 (a).
Amalgamated Plastic Toys & Novelty Workers, Local 44, is hereinafter referred to
as Local 44 or the Union.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any assistance to the Union; threatened employees with discharge if they adhered
to the Union or remained members thereof; promised them "economic benefits" and
other benefits if they did not join or assist the Union; and further, that "on or about
March 13 and 14, 1958, Respondent offered, promised and granted to (sic) its
employees wage increases, vacation pay, and other benefits ." if they refused
to support the Union. The complaint asserts increases in pay made by the Respond-
ent to certain named employees in an effort to discourage membership in the Union.
The Respondent filed timely answer to the complaint, and on the issues drawn
by the complaint and the answer (which effectively denied violations of the Act),
this case came on to be heard before the duly designated Trial Examiner at New
York, New York, on October 13, 1958. The hearing was closed on October 16. At
the hearing the General Counsel, the Respondent, and the Union as charging party,
each was represented by counsel. Full opportunity to be heard, to produce witnesses,
to examine and cross-examine witnesses, to argue orally upon the record, and to
file briefs, proposed findings of fact, and conclusions of law was afforded each party .4
Motions made at the hearing on behalf of the Respondent to dismiss the complaint
are denied, for reasons set forth below.
Upon the whole record of the case, and after careful consideration, the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Habib Marcus, a private individual, is and has been at all times material hereto
an individual proprietor doing business under the trade name and style of Marcus
Bros. During these times, the Respondent has maintained his principal office and
place of business at 371 Broadway, in the City of New York, State of New York,
and is now and has been continuously engaged at this place of business in the
manufacture, sale, and distribution of crib sheets, pillowcases, baby blankets, and
related products. During the past year the Respondent, in the course and conduct
of his business operations, caused to be manufactured, sold, and distributed at the
said place of business or plant, products valued at approximately $100,000, of which
products valued in excess of $50,000 were shipped from said plant in interstate
commerce directly to States of the United States without the State of New York.
The Respondent is, and has been at all times material hereto, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Plastic Toys & Novelty Workers, Local 44, I.B.P.M.O.E., Ind., is,
and has been at all times material hereto, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On the morning of March 12, 1958, Dominic Zulferino, secretary-treasurer of
Local 44, and Victor Cavallo, president of that Local, were on the sidewalk in
front of 371 Broadway, the loft building where the Respondent conducts its manu-
facturing operations, and were engaged in an effort to organize the employees of
another employer either in that loft building or one next to it or near it. While
Zulferino and Cavallo were talking to these employees, one Maria Lopez and her
sister Petra approached the two men and asked them about the Union; Maria Lopez
said, "We sure could use a union," and after further conversation Maria and her
sister suggested that they speak to other employees of the Respondent regarding the
Union. Zulferino and Cavallo furnished the two Lopez girls with blank application
cards for membership in Local 44. On that day (March 12) at least four out of
nine employees of Marcus signed application cards for membership in Local 44;
at least four employees signed application cards on the following morning, March 13,
4 At the hearing, counsel for the General Counsel moved to amend the complaint to say
that "since on or about April, 1958, and at all times thereafter the Respondent aided and
assisted his employees to repudiate the Union." The motion to amend was granted on
condition that the Respondent, if advised of prejudice, could move for time to meet the
issue or to answer to the testimony of witnesses. No motion in this respect was made
on behalf of the Respondent.
MARCUS BROS. 39
and one card dated March 11 was signed either on March 12 or 13 (probably
March 12).5
Having in their possession on the morning of March 13 application cards signed
by all nine of the employees of the Respondent employed as production employees,
Dominic Zulferino and Cavallo spoke to Frank Zulferino , the International president
of the Union ; shortly thereafter in the afternoon of March 13, Frank Zulferino
accompanied Dominic Zulferino and Cavallo to 371 Broadway where they saw
Marcus at work on the factory floor. Frank Zulferino introduced himself and
his companions to Marcus , and after telling Marcus that the Union represented his
employees , asked for recognition of the Union as the representative of Marcus'
employees . Marcus left the factory floor and went into his office , adjacent thereto,
and some further conversation ensued, mostly between Frank Zulferino and Marcus.
It is clear that Marcus at that time refused to recognize the authority of the union
representatives to bargain on behalf of his employees . According to the three union
representatives then present , Marcus told them that he was dealing with or had a
contract with another union and that the girls "could go out" if they wanted to,
but that he would not recognize Local 44.
The version of this conversation or this meeting as given by Marcus varies in
essential detail from that given by the union representatives . According to Marcus,
the men came in and Zulferino gave him a business card at which time he, Marcus,
said that he had an appointment and asked them to come in at a later time . Marcus
stated positively that the union representatives at that time did not ask for union
recognition . In view of what happened almost immediately after the union repre-
sentatives left the premises of the Respondent on March 13, the testimony of Marcus
with respect to this conversation is discredited in its entirety and the Trial Examiner
accepts the version as given by the two Zulferinos and Cavallo . They did ask for
union recognition and were refused such by Marcus.
Almost immediately after the union representatives left the factory office and
floor on the afternoon of March 13, Marcus caused the machines to be shut down,
called the employees together , and, according to him, asked them "what it was all
about"; that the girls told him "we don't know ," and then he asked Maria Lopez
to talk to the girls and find out what the union representatives wanted, or words to
that effect.
The nine production employees employed by Marcus during the week ending
March 14, 1958, were Olga Valez Flores, Antonia Chaves Garcia, Conchita deLeon
Rivera, Dolores Accevedo , Petra Lopez , Alija deLeon , Antonia Morales, Maria
Lopez, and one male employee , Coy-Lee Overton.6
Most of the employees involved herein are Puerto Ricans and do not have fluent
command of English and consequently the testimony of all but two or three of
them who were heard at the hearing was received through a qualified and competent
interpreter , Joseph Santana . Maria Lopez, of all the girls employed , had the best
command of English, and it appears that she in the past customarily was called
upon at times by Marcus to communicate to other employees certain matters
he wished to have conveyed to them in connection with their work. She testified
with respect to what happened on the afternoon of March 13 , after the two Zulferinos
and Cavallo had left the factory . She said that the machines were stopped and
Marcus talked to the girls ; that after he had talked to them they all resumed work
with the exception of the floorboy, Overton , and herself , who were called into
Marcus' office and told by him then that the Union was nothing but a bunch of
racketeers . She said that Marcus just prior to this , in talking to the whole group,
made remarks which at his request she transmitted to the rest of the girls in Spanish;
she said that among other things Marcus wanted to know why the girls had joined
the Union without talking to him; he said that if the Union came into the factory
he would fire everybody , that they did not need to join a union and that if they
did not join a union he would give them raises and vacations with pay.
The testimony of Maria Lopez with respect to the signing of the application
cards for the Union is substantiated by testimony of other employees of Marcus:
the application cards for membership in the Union were furnished to her and to
others at their request on the sidewalk in front of 371 Broadway ; the girls had the
union representatives , Dominic Zulferino and Cavallo , explain the benefits of the
5It was stipulated at the hearing that for the week ending March 14, 1958 , there were
nine "production employees " employed by the Respondent at 371 Broadway.
6 At the hearing it was stipulated that Sam Marcus and Ezra Marcus , apparently both
sons of Habib, at times material to this case were supervisors within the meaning of
the Act.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union to them , and they all voluntarily signed the application cards and gave them
to Zulferino and Cavallo.
Olga Flores testified that within an hour after the machines had been shut down,
Marcus called the girls together and asked them if they had joined the Union, and
then after they had said "yes" he called Maria Lopez to tell the girls he did not
want the Union , that he would give the girls what they wanted, in the way of a
raise and a vacation . Antonia Morales said that after the union representatives
had left the premises Marcus told Alija deLeon , Maria Lopez , and her that the
Union was a bunch of racketeers , that he did not want the Union , that he would
give them a raise and a vacation ; and that Maria Lopez also told her and the other
girls, at the request of Marcus, what he had said when he was talking to them.
Alija deLeon said that Marcus talked to the group and mentioned benefits "and
so on," said if they wanted the Union he would close the shop because he did not
have the money "to pay the contracts ," and said further he would give them a
raise and a vacation if they did not support the Union . The testimony of these
employees was the same in essence . Allowing for variances in their manner of
speech, they were all agreed in substance as to what Marcus had told them and
had told Maria Lopez to te l l them when he spoke to them on the afternoon of
March 13.
After the union representatives had departed from Marcus' premises on March 13,
Dominic Zulferino on behalf of Local 44 filed a petition for certification with the
New York State Labor Relations Board ( later dismissed or withdrawn for lack
of jurisdiction ). After the filing of that petition , Zulferino returned to 371 Broad-
way where, again in front of the building , he was informed what Marcus had told
the girls that afternoon . Five of the employees accompanied Dominic Zulferino
to the offices of the Union , where they signed a statement to the following effect:
Affidavit of the workers
The boss, Mr . Marcus asked all the girls, if we signed the cards for the
Union, and we all answered , we did.
He said if the Union comes into this factory , I'll fire everybody . If we don't
join the Union he said that he will give all the girls vacation and a raise.
OLGA FLORES VELEZ.
MARIA LOPEZ.
CONCHITA DE LEON RIVERA.
PETRA LOPEZ.
ALIJA DELEON.
Max Davis , secretary-treasurer and business manager of Independent Union,
Local No. 10 , of which Local 44 is a subordinate part, testified that in early April,
Salvatore lannuci, an attorney representing Marcus, called at the union office,
said he represented Marcus, and inquired what the Union requested in the way of
a contract. Davis ( and Frank Zulferino was present during part of this meeting)
testified that he asked lannuci whether he had authority to negotiate a contract;
lannuci said he had not but he hoped that the Union would present a contract he
could take back to Marcus that would be acted upon favorably , and said further
that if a comparison of card signatures with company social-security records proved
satisfactory insofar as authenticity of signatures was concerned , the signatures of
employees would be accepted as proof of union membership . On leaving , according
to Davis , Attorney lannuci said that he would communicate with the Union in the
future; that later lannuci did telephone and told Davis he could not work anything
out with Marcus , who would not agree to any kind of a contract.
The payroll records of the Respondent show that for the week ending March 14,
1958 , there were nine employees working as floorworkers. The payroll records
reflect that for the weeks ending March 21, 28, and April 4 the same employees and
none others were employed ; that one employee was dropped during the week ending
April 11 and the other eight continued at work through the payroll period April 25.
The payroll records show that for the week ending March 7 a wage increase was
granted to Dolores Accevedo , and that for the week ending March 14, wage increases
were given to Alija del-con, Antonia Garcia , Conchita Rivera , Coy-Lee Overton,
and Maria Lopez. Each raise, with the exception of Dolores Accevedo , was effective
at the beginning of the workweek ending March 14.
No paid vacations were granted for the year 1957. For the year 1958 , a 1-week
paid vacation was given during the vacation period, to each of the employees then
on the payroll who were on the payroll for the week ending March 14.
MARCUS BROS. 41
On the basis of uncontradicted testimony herein , it is found that Marcus engaged
in no other threats or acts of intimidation or coercion except the following which, in
whole context of the case , is significant.
The Respondent offered and there was received in evidence herein a document
dated October 7, 1958, reading as follows:
We, the undersigned , employees of Marcus Bros., 371 Broadway , New York,
hereby wish to make the following statement:
We have never been threatened or abused or mis-informed by Mr. Habib
Marcus or . any of the persons in charge of the factory , in regard to Union
activities.
We do not wish to be represented by Local 44 of the Amalgamated Plastic,
Toys and Novelty Workers Union or by any other union.
EMPLOYEES OF MARCUS BROS.
Nosotros , los empleados de Marcus Bros., 371 Broadway , New York,
deseamos hater la siguiente declaracion:
Nosotros , en ningun momento, hemos lido amenazados o enganados por el
Sr. Habib Marcus o por los encargados de la fabrica con relacion a actividades
conectadas con la Union.
No deseamos unirnos al Local 44 de la Amalgamated Plastic, Toys and Nov-
elty Workers Union, o a ninguna otra union.
EMPLEADOS DE MARCUS BROS.
CONCHITA DE LEON RIVERA MARIA LOPEZ
MARIE DEBROANO PETRA LOPEZ
EARLENE WALKER OLGA FLORES
EVA LAUFER
COY LEE OVERTON
ALIJA DE LEON
Before this document was received in evidence , counsel for the Respondent cross-
examined Olga Flores , who said that she signed the paper saying that she did not
want to belong to the Union, that she signed it because the other girls had signed it,
and also because Marcus "told her to sign it." Alija deLeon on cross-examination
said that she had signed because "Mr . Marcus' son told the girls to sign and because
all the other girls had signed ." Maria Lopez on cross-examination said that the
statement was true when she signed it; on redirect examination, she said she signed
the document because she was afraid of losing her job. The testimony of each of
these three girls shows that it was signed in July and August at a time when the girls
were either due or were receiving their vacation pay.
Marcus explained this document this way: About during the week ending March
21, Maria Lopez asked him to "sign for social security"; he said: "If you want to go,
it is up to you. You are working for me and I am not to sign for you." She went
back to work ; the same employee asked him later how she could get her union card
back; he replied he had no authority to "do anything of that kind , but I will try to
find out and see what it is all about." Marcus said further that about a week later he
asked her if she still wanted her card back , and on an affirmative reply, told her,
"As-much as you• give authority to the union , you will have to give it to me. If you
want to put it in writing that you want me to bring the card back , I will try to do
it under this way, by signing for me, that you want me to get the card back." After
thinking over what he was going to write, Marcus said, he approached "a girl up-
stairs that speaks Spanish and English ," and as a result of his conference with her,
the statement was written . Thereafter , Marcus called the attention of Maria Lopez
to it , said it would "be inside the office ," and she could sign it after conferring with
her father or mother "because I don't want to have any interference whatsoever."
Marcus kept the statement in his desk , and, as shown , it was signed by an employee
or employees at different times.
At the hearing herein, there was some innuendo attempted on behalf of the Re-
spondent to the effect that some of the above-mentioned employees were subject to
some form of duress by union representatives directed toward inducing them to join
or remain members of the Union . No testimony was offered in this respect on
behalf of the Respondent, and no suggestion was made by any of the employees who
testified that any display of force or inducement was made toward them by union
representatives . On the contrary , it appears to the Trial Examiner that their action
in joining the Union and supporting it was voluntary and that, indeed , it was at the
request of the employees themselves that the Union became active in its organiza-
tional effort.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, the Respondent made no effort to deny the testimony of Davis, substan-
tiated by Frank Zulferino , that Attorney lannuci entered into the picture in April,
and thereafter informed Davis that it would not be possible for the Union to receive
recognition or a contract from Marcus.?
The Appropriate Bargaining Unit
The payroll records of the Respondent for the week ending March 14, 1958, show
employment of production employees who, it would seem, worked under Ezra Marcus
as their supervisor, Sam Marcus, and Eva Laufer, the bookkeeper. Other payroll
records running through the week ending April 25 show the same classification of
employment. It is not difficult to determine that a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act 8 is made up
of all production and maintenance employees employed at the plant or factory of the
Respondent at 371 Broadway, New York City.
Concluding Findings
The violations of the Act, as asserted by the complaint herein, and supported by
competent evidence, are so plain on their face as to require little or no comment.
Questions of credibility, as between witnesses other than Habib Marcus, are resolved
against Marcus.
The violations of Section 8(a) (1) of the Act, as found by the Trial Examiner,
certainly are of the kind considered in Joy Silk Mills, Inc. v. N.L.R.B., 87 App.
D.C. 360, 185 F. 2d 732, cert. denied, 341 U.S. 914. As for violation of Section
8(a) (5) herein found, see N.L.R.B. v. American National Insurance Co., 343 U.S.
395, and cf. N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342.
In the instant case, the Employer did not get so far as to consent to bargain; he
took prompt steps to avoid the possibility.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The Respondent, by acts of initimidation, interference, and coercion and promises
of benefit in contravention of Sections 7, 8(a)(1), and 8(a)(5) of the Act and the
refusal of the Respondent to bargain collectively with the Union as the representative
of the employees of the Respondent in an appropriate bargaining unit as defined in
Section 9(a) of the Act, as set forth in section III of this Intermediate Report, in
connection with the business activities described in section I herein, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States of the United States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent, since on or about March 13, 1958, and at all
times material thereafter, has interfered with, coerced, and intimidated its employees
in the exercise of the rights guaranteed to them by Section 7 of the Act, and that the
Respondent at all times after such date refused and continues to refuse to bargain
with the Union as the exclusive representative of its employees in an appropriate
bargaining unit, and having found further that the Respondent has failed and refused
to bargain collectively with said Union with respect to wages, hours of employment,
and conditions of employment, and all other matters as required by the Act, and by
so doing has interfered with, ,restrained, and coerced its employees in the exercise of
the rights guaranteed by Section 7 of the Act, it will be recommended that the
Respondent cease and desist therefrom.
On the basis of the foregoing findings of fact and upon the entire record in this
case, the Trial Examiner makes the following:
7 There is in evidence in the case a pretrial statement furnished by Habib Marcus to
an investigator of the Board, sworn to by Marcus May 21, 1958. This statement is found
by the Trial Examiner to be inconsistent with testimony given by Marcus during the
course of the hearing.
8 "Sec. 9. (a) Representatives designated or selected for the purposes of collective bar-
gaining by the majority of the employees in a unit appropriate for such purposes, shall
be the exclusive representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of employment, or other
conditions of employment : . . .
SPECTOR FREIGHT SYSTEM, INC. 43
CONCLUSIONS OF LAW
1. Amalgamated Plastic Toys & Novelty Workers, Local 44, I.B.P.M.O.E., Ind., is
:a labor organization within the meaning of Section 2(5) of the Act.
2. By refusing and continuing to refuse to bargain collectively with the aforesaid
Union as the exclusive representative of its production and maintenance employees at
its New York, New York, plant, located at 371 Broadway, New York City (exclud-
ing office clerical employees, professional employees, guards, and supervisors as
defined by the Act whose services may be paid for or utilized by the Respondent), the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
3. By refusing and continuing to refuse to bargain with the said Union, as afore-
said, the Respondent has interfered with and continues to interfere with the rights
guaranteed to its employees under Section 7 of the Act, and thereby has engaged in
and is engaging in an unfair labor practice within the meaning of Section 8 (a) (1) of
the Act.
4. The Respondent, by interrogating his employees concerning their membership in
and their activities on behalf of the Union, by warning them to refrain from becoming
members of the Union or giving any assistance to the Union, by threatening em-
ployees with discharge if they adhere to the Union or remain members of the Union,
by promising employees economic benefits and other benefits if they did not join or
assist the Union, and by offering, promising, and granting to its employees wage
increases, vacation pay, and other benefits if they refused to join the Union, and by
granting increases of pay to certain employees in an effort to discourage membership
in the Union, has interfered with, restrained, and coerced his employees in the rights
guaranteed to them by Section 7 of the Act, and has violated Section 8 (a) (1) of the
Act by engaging in such prohibited activities.
5. The above-described labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Spector Freight System , Inc. and Paul H. Conrad
Local 600, Highway & City Freight Drivers, Dockmen & Help-
ers, affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America and Paul
H. Conrad . Cases Nos. 11-CA-1783 and 14-CB-550. March 5,
1959
DECISION AND ORDER
On December 12, 1958, Trial Examiner Max M. Goldman issued
his Intermediate Report in the above-entitled proceedings, finding
that the Respondent Company and the Respondent Union had en-
gaged 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 copy of the Intermediate Report
attached hereto. Thereafter, the Respondent Company and the
Respondent Union filed exceptions to the Intermediate Report and
supporting briefs.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
1 Pursuant to the provisions of Section 31(b) of the Act, the Board has delegated its
powers in connection with these cases to a three-member panel [Members Rodgers, Jenkins,
and Fanning].
123 NLRB No. 3.