Quality Art Novelty Co., Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1940

20 N.L.R.B. 817 (N.L.R.B. 1940)

III the Matter Of QUALITY ART NOVELTY Co., INC. and UNITED PAPER
WORKERS, L. I. U. No. 292
In the Matter of QUALITY ART NOVELTY Co., INC. and COMMITTEE FOR
INDUSTRIAL ORGANIZATION ON BEHALF OF THE EMPLOYEES OF QUALITY
ART NOVELTY Co., INC.
Cases Nos . C 103,E and 8-844 , respectively .Decided February 24,
1940
Greeting Card Industry-Interference. Rectraint, and Coercion: interrogation
of employees as to union affiliation and activities ; surveillance of union meet-
ing ; speeches and statements disparaging union-Company-Dominated Union:
determine choice of representatives, following respondent's expression of hos-
through, to forestall union organization ; proposal by respondent of vote to
determine choice of representatives, following respondent's expression of hos-
tility toward affiliated union and preference for "inside" organization ; promo-
tion of "inside" organization permitted while similar privileges denied proponents
of affiliated union; employees dismissed early and instructed to attend organiza-
tional meetings of "inside" organization ; recognition granted to and negotia-
tions for contract begun with "inside" organization without verification of
membership claim; contract with "inside" organization executed despite claim
of affiliated union ; changes in wages and working conditions denied employees
promptly granted "inside" organization exhibiting no economic strength ; dis-
established, as agency for collective bargaining-Preferential-Shop Contracts:
with company-dominated union, invalid ; announcement of prospect of, used as
means of establishing "inside" organization ; executed for purpose of stabilizing
and insuring continuance of "inside" organization; respondent ordered to cease
giving effect to-Discrimination: employee allegedly discharged for sabotage
found discharged for union activity ; lay-off of four employees pursuant to
preferential contract with company-dominated union held discriminatory ; dis-
crimination against laid-off employees not terminated where reemployed subject
to illegal preferential contract-Reinstatement Ordered: for employees dis-
charged and employees laid off ; reemployment of latter subject to illegal
preferential contract no bar-Back Pay: awarded to employees ordered rein-
stated-Investigation of Representatives: petition for, dismissed without preju-
dice in view of lapse of time and uncertain proof as to appropriate unit-
Procedure: application for continuance after commencement of hearing : neces-
sity of showing adequate cause for; circumstances under which properly
denied ; amendment of complaint during hearing- to add allegations of dis-
criminatory discharge : objections to on grounds of surprise and lack of 5
days' notice without merit where adequate opportunity afforded to prepare
defense.
Mr. Mark Lauter, for the Board.
Mr. Abraham J. Halprin, of New York City, for the respondent.
20 N. L. R. B., No. 77.
817
818 DECISIONS OI,' NATIONAL LABOR RELATIONS BOARD
Mr. George Glassgold, by Mr. Herbert S. Klein, of New York City,
for the Intervenor.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On October 26, 1937, the Committee for Industrial Organization 1
filed with the Regional Director for the Second Region (New York
City) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Quality Art
Novelty Co., Inc., Long Island City, New York, herein called the
respondent, and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On November 16,
1937, the Committee for Industrial Organization filed charges with
the Regional Director 'alleging that the respondent had engaged in
and was engaging in certain unfair 'labor practices affecting com-
merce, within the meaning of the Act. - On November 24, 1937, the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice, and, acting pursuant to Article III, Section
10 (c) (2), and Article II, Section 37 (b), of the said Rules and
Regulations-Series 1, as amended, directed that the representation
proceeding and the proceeding in respect to the alleged unfair labor
practices be consolidated for the purpose of hearing.
On January 11, 1938, United Paper Workers, L. I. U. No. 292,
herein called the Union, affiliated with the Committee for Industrial
Organization, filed amended charges in the proceedings in respect
to the alleged unfair labor practices and on April 1, 1938, filed
second amended charges therein.2 Thereafter, upon the second
amended charges, the Board, by the Regional Director, issued its
complaint dated April 5, 1938, against the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(2), and (3) and Section 2 (6) and (7) of the Act.
1 Now the Congress of Industrial Organizations.
2 The original charge alleged that the respondent had engaged in unfair labor practices
within the meaning of Section 8 ( 1) and (2), and the amended and second amended
charges, Section 8 (1), (2), and (3), of the Act.
QUALITY ART NOVELTY 'COM'PANY, INC. 819
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent had (1) in and about October
1937, initiated, formed, sponsored, and dominated a labor organiza-
tion of its employees known as the Quality Art Shop Union, herein
called the Intervenor,3 and contributed financial and other support
to it; (2) in November 1937, discharged Blanche Jonas and Helen
Ruderman, and, in March 1938, discharged Jerome Berent and Irving
Goldstein, and refused to reinstate said employees for the reason that
they joined and assisted the Union and engaged in other concerted
activities for the purpose of collective bargaining; and (3) by the
afore-mentioned acts, as well as by urging, persuading, and warning
its employees to refrain from becoming or remaining members of the
Union, by surveillance of meetings of the Union, by threatening its
employees with discharge and other reprisals if they did not' become
members of the Intervenor, and by other acts, interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Copies of the complaint and order of consolidation, accompanied
by notice. of hearing, were duly served upon the respondent, the
Union, and the Intervenor.4
On or about April 13, 1938, the respondent filed an answer and a
motion for a bill of particulars. In its answer, the respondent ad-
mitted the allegations of the complaint as to the nature of its
business, but denied the averments of unfair labor practices.5
On or about April 14, 1938, the Intervenor filed a petition for leave
to intervene, which the Regional Director granted, and an answer.
By its answer the Intervenor denied the allegations of the complaint
of unfair labor practices with respect to its formation and adminis-
tration, and specifically denied that it participated in or in any man-
ner influenced or caused the discharge of any of the employees named
in the complaint, except that it alleged that Berent and Goldstein,
two of said employees, were laid off in accordance with the terms
a The Intervenor was incorrectly designated in the complaint as the Quality Art Novelty
Employees Association. On May 12, 1938, counsel for the Board served a notice of motion
to amend the complaint in this respect , and at the commencement of the hearing, on May
19, 1938, the Trial Examiner granted the motion without objection.
4 Copies of the notice of hearing on the consolidated cases were also served upon certain
labor organizations affiliated with the American Federation of Labor, herein called the
A. F. of L. Unions, which might claim to act as representatives of the respondent's em-
ployees affected by the representation case . The A. F. of L. Unions were the Committee
of the Allied Printing Trades Unions , New York Printing Pressmen 's Union No. 51, New
York Typographical Union No. 6, New York Press Assistants Union No. 23, Paper Cutters
Protective Union No. 119, Bindery Women's Union No. 66, and Paper Handlers and Sheet
Straighteners Union No. 1.
5 The answer of the respondent also included certain pleas addressed to the petition for
investigation of representatives.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a contract entered into between the respondent and the Intervenor
under date of December 10, 19378
On April 28, 1938, the Regional Director duly postponed the hear-
ing until May 19, 1938. Notices of the postponement were duly served
upon the parties.7
On or about May 13, 1938, the Intervenor filed a motion for a bill
of particulars.
Pursuant to notice, a hearing was held in New York City on May
19, 1938, and from May 27 to June 17, 1938, before James M. Brown,
the Trial Examiner duly designated by the Board. The Board, the
respondent, and the Intervenor were represented by .counsel, and all
participated in the hearing." Full opportunity to be heard, to ex-
amine and cross-examine witnesses , and to introduce evidence bearing
on the issues was afforded all parties.
At the commencement of the hearing, the Trial Examiner denied
the motions of the respondent and the Intervenor for bills of par-
ticulars, but stated that after the Board had presented its case, he
would grant such time as would appear necessary to prepare their
evidence. On June 9, 1938, shortly after the mid-day recess, the
Board rested its case, with leave to call three additional witnesses."
Thereupon, the respondent requested an adjournment until June 16,
1938, to prepare its evidence. The Intervenor made no request for
an adjournment. The Trial Examiner denied the respondent's appli-
cation for An adjournment of a week, but adjourned the hearing
until June 13, 1938. The record shows that the denial of the motions
for bills of particulars did not embarrass either the respondent or the
Intervenor in the conduct of their cross-examination of witnesses
called by the Board, but discloses that, on the contrary, such cross-
examination was most exhaustive, and that the adjournment granted
by the Trial Examiner was entirely adequate to permit the respondent
and the Intervenor to prepare their evidence. The rulings are
affirmed.
Witnesses called by the respondent were heard on June 13, 14, 15,
and 16, 1938. Toward the close of the hearing held on 'June 16, 1938,
counsel for the respondent stated that the respondent had completed
its proof except for the testimony of Harry Hankoff, the respondent's
e'The answer of the Intervenor also included certain pleas addressed to the petition for
investigation of representatives erroneously referred to in the answer as a charge.
7 Copies of the notice of postponement were also served on the A . F. of L. Unions (see
footnote 4, supra).
$ None of the A. F. of L. Unions participated . ( See footnote 3, supra.)
9 These three were Blanche Jonas, one of the persons named in the original complaint
as discriminatorily discharged and denied reemployment , and Kelman Borten and Lester
Cohen , whose names were included by amendment of the complaint during the hearing on
June 13, 1938 , ( see infra ) as also discriminatorily discharged and refused reinstatement.
Blanche Jonas did not appear as a witness . As appears below , Korten and Cohen testi-
fied on June 17 , 1938, and their testimony related to facts which , so far as necessary to
the decision of the case , are undisputed.
QUALITY ART NOVELTY 'COMPANY, INC. 821
credit manager, and Herman Frankel and David Korn, two of the
respondent's salesmen, and that these "material witnesses referred to
repeatedly by witnesses" called by the Board were "on a business tour
and won't be back until sometime next week." The respondent did
not expressly request an adjournment, and the Trial Examiner
directed the Intervenor to proceed with its case. On the following
day, the Intervenor completed its case, the Board introduced the
testimony of two witnesses in accordance with the reservation allowed
on June 9, 1938,10 and the respondent called one further rebuttal
witness. Counsel for the respondent then stated that "The respond-
ent rests on (sic) direct, and under the conditions heretofore stated."
Thereby, the respondent now urges, it intended to indicate that it
wished an adjournment in order to introduce the testimony of
Frankel, Hankoff, and Korn. The Trial Examiner does not appear to
have understood the statement as intended to be such an application,
and does not seem to have purported to rule thereon in ordering the
hearing closed. His ruling closing the hearing was proper, however,
even assuming the statement of respondent's counsel may be deemed
an application for a continuance,h1 and is hereby affirmed. Testi-
mony involving Frankel and Korn had been given by Helen Ruder-
man, a witness called by the Board on May 17, 1938, the first day of
the hearing; and testimony involving Hankoff had been given by
Irving Goldstein, another witness called by the Board on June 3, 1938.
The respondent, therefore, had ample time to arrange to have these
witnesses available if it wished them to testify. Moreover, the re-
spondent made no showing that they were unavailable when it re-
quested and obtained an adjournment on other grounds on June 9,
1938, or that they could not have been produced by the conclusion of
the hearing more than a week later. As we have pointed out in.
another case,. "In the absence of an adequate showing of substantial
cause, private convenience must accommodate itself to public neces-
sity." 12 In the instant case the respondent has not, indeed, made even,
a showing of private inconvenience.
A supplemental charge having been filed, counsel for the Board
moved at the hearing on May 27, 1938, to amend the complaint tb
allege, that, in March 1938, the respondent-had discharged Edward
Axelrod and refused to reinstate him for the reason that he joined
10I. e., Lester Cohen and Kelman Borten (see footnote 9, supra).
"For the reasons stated below we find it unnecessary to determine whether the state-
ment of counsel for the respondent amounted to an application for a continuance, particu-
larly in view of the indefinite reference therein to the time when Frankel, Hankoff, and
Korn were expected to be available.
'= Matter of Ronni Parfum, Inc., and. Ey-Teb Sales Corp. and United Mine Workers of
America, District No. 50, Chemical D'vision, Successor to Chemical Workers Local Indus-
trial Union No. 33, affiliated with the C. 1. 0., 8 N. L. R. B. 323, 325, order enforced.
National Labor Relations Board v. Ronni Parfum, Inc., 104 F. (2d) 1017 (C. C. A. 2d,
1939).
283031-41-vol. 20-53
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and assisted the Union and engaged in other concerted activities for
the purpose of collective bargaining. The Trial Examiner granted
the motion, overruling the objection made by the respondent that no.
amendment might be offered after the commencement of the hearing,
an objection obviously without merit,13 and the general objection
made by the Intervenor. A further supplemental charge having been
filed, counsel for the Board moved at the commencement of the hear-
ing on June 13, 1938, to amend the complaint to allege that the re-
spondent had also discharged Lester Cohen and Kelman Korten in
March 1938 and had refused to reinstate them for the reasons afore-
said. The Trial Examiner allowed the amendment over the objections
of the respondent, based first on the ground of surprise, and secondly
on the ground that the respondent was entitled to 5 days' notice.-
The latter contention apparently was sought to be rested upon the
provision of the Rules and Regulations allowing a respondent 5 days
within which to file an answer to a complaint,- a provision which is
inapplicable to motions to amend a complaint during a hearing. With
respect to such a situation, the Rules and Regulations provide'16 as
was pointed out by the Trial Examiner, that an amendment may be
made by the Trial Examiner "upon such terms as may be deemed just."
Essentially, therefore, in the instant case, the inquiry is as to whether
the respondent was afforded adequate opportunity to make its de-
fense. Cohen and Korten were not called as witnesses until June 17,
1938, at which time they testified without objection, and no adjourn-
ment was requested to enable respondent to rebut their testimony.
The prior objection on the ground of surprise was thus plainly waived.
Moreover, as will appear, so far as necessary to our decision, the facts
with respect to the reason for the termination of the employment of
Cohen and Korten are not disputed '17 and no purpose would have
13 Article II, Section 7, of National Labor Relations Board Rules and Regulations-
Series 1, as amended , provides , "Any such complaint may be amended by the Trial Exam-
iner or the Board in his or its discretion at any time prior to the issuance of an order
based thereon , upon such term's as may be deemed just ." Axelrod did not testify until
June 8, 1938, and, as we point out below, so far as necessary to our decision the facts with
respect to reasons for the termination of his employment are not in dispute.
14 The Intervenor did not oppose the motion.
16 Article II, Sectiog 10. The time is enlarged to 10 days by National Labor Relations
Board Rules and Regulations-Series 2, effective July 11, 1939.
16 Article II, Section 7. See footnote 13, supra.
17 While no formal answer was filed to the complaint as amended on May 27 and June 13,
1938, to include the allegations with respect to Axelrod , Cohen, and Korten, the respond-
ent's position with respect thereto, as well as with respect to Goldstein, named in the
original complaint , is fully stated in an affidavit filed by it on or about October 1, 1938,
in opposition to a motion to strike the allegations of the complaint with respect to Berent,
another complainant ( see infra ). In said affidavit the respondent stated that as to these
"complainants , the company claimed that they were discharged because of the seniority
and preference granted to members of the shop union [ i. e., the Intervenor ] in accordance
with the terms of a written contract in effect between the shop union and the company."
Previously , in its brief submitted to the Trial Examiner after the close of the hearing, the.
respondent had set forth the same contention , I. e., that these employees were discharged
because of "non-membership in the shop union and in conformity with the provisions of:
the contract."
QUALITY ART NOVELTY 'COMPANY, INC. 823
been served by continuing the hearing. The rulings of the Trial
Examiner amending the complaint are affirmed.
During the course of the hearing, other rulings on motions and
on objections to the admission of evidence were made by the Trial
Examiner. At the conclusion of the hearing, the Trial Examiner
granted a motion by counsel for the Board to amend the complaint
to conform to the proof with respect to variances in names, places,
and dates. The Board has reviewed these rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
After the close of the hearing the respondent and the Intervenor
filed briefs with the Trial Examiner .who duly considered them.
On or about September 29, 1938, the Regional Attorney for the
Board filed with the Regional Director a motion to strike the name
of Jerome Berent from the complaint. The motion, copies of which
were served upon the respondent and the Union, set forth that on
July 26, 1938, counsel for the respondent had written the Regional
Office that certain employees, including Berent, had been reemployed;
that on August 31, 1938, the Regional Office had received a further
communication from the attorney for the respondent which stated
that there was enclosed therewith a letter which he had sent to the
Trial Examiner, alleging that Berent had confessed to have stolen
property from the respondent during the past year, and that the
communication also enclosed a photostat of a purported confession
by Berent; that on September 2 the attorneys for the Union had
written,the Regional Director that Berent had been reinstated by the
respondent and had thereafter terminated his employment under
circumstances which led the Union to request leave to withdraw the
charge in so far as it related to Berent and to request the Trial
Examiner be so advised; that on September 4, 1938, the Regional
Office submitted to the attorney for the respondent a stipulation
providing for the withdrawal of the allegations in the charge and in
the complaint with respect to Berent, but that the attorney for the
respondent refused to sign such stipulation.
On, or about October 1, 1938, the respondent filed the affidavit of its
attorney in opposition to the motion to strike. In addition to setting
forth certain allegations with respect to the alleged theft, and con-
fession thereof, by Berent, the affidavit explained the refusal of the
respondent to sign the afore-mentioned stipulation on the ground that.
Berent's confessed criminal conduct affected. his credibility, that his
testimony should remain in the record in order that it might be dis-
credited and in order that the respondent's defense might thereby be
strengthened.
In his Intermediate Report., issued on or about November 10, 1938,
the Trial Examiner granted the motion to strike the allegations of
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint with respect to Berent. Since the motion was not di-
rected to the testimony of Berent, we are unable to perceive any ground
for the affidavit filed in opposition thereto. Certainly the action of
the Trial Examiner in striking Berent's name from the complaint
did not prejudice the respondent.
In his Intermediate Report, copies of which were duly served. upon
the parties, the Trial Examiner found that the respondent had en-
gaged in and was engaging in unfair labor practices affecting con-
merce, within the meaning of Section 8 (1), (2), and (3) of the
Act and recommended that the respondent cease and desist there-
from and take certain affirmative action to remedy the situation
brought about by those unfair labor practices. The Trial Examiner
further recommended that the complaint be dismissed as to Blanche
Jonas, with respect to whose discharge no evidence was offered at
,the hearing.
Exceptions to the Intermediate Report were filed by the respondent
•on November 23, 1938, and by the Intervenor on November 26, 1938.
On May 19, 1939, pursuant to notice duly served upon the parties, a
hearing was held in Washington, D. C., for the purpose of oral argu-
ment. The respondent and the Intervenor were represented by coun-
sel and presented oral argument. The Union did not appear' At
the close of the argument the respondent and the Intervenor filed
briefs which have been considered by the Board. In its brief the
respondent seeks to attach importance to the fact that the Trial Ex-
aminer in his Intermediate Report gave credence to the testimony
of Berent. While in our findings we do not rely upon his testimony,
either as independent evidence or as corroborative of other testimony,
there clearly is no merit in the contention apparently made that by
reason of Berent's alleged misconduct subsequent to the hearing the
Trial Examiner who saw and heard the witnesses was not entitled
to accept his testimony.
The Board has considered the exceptions of the respondent and of
the Intervenor to the Intermediate Report and, except in so far as
they are consistent with the findings, conclusions, and orders set
forth below, finds them to be. without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation engaged in the manu-
facture, sale, and distribution of greeting cards. Its principal office
18 None of the A. F. of L. Unions (see footnote 4, supra ) appeared at the oral argument,
but on June 21, 1939, pursuant to permission granted by the Board , New York Press
Assistants Union No. 23 filed a brief with respect to its alleged interest in the representa-
tion case.
825QUALITY ART NOVELTY COMPANY, INC.
and plant are located at Long Island City, New York, and a sales
office is maintained in New York City. The raw materials pur-
chased by the respondent include paper, inks, lead, tassels, ribbons,
seals, and other related products. In 1937 the gross volume of such
purchases totaled approximately $650,000, of which 50 per cent were
made in States other than the State of New York. During the. same
period, the respondent shipped to points outside the State of New
York, and including Canada and England, finished products repre-
senting $1,870,000 in gross sales, and shipped to points within the
State of New York finished products representing $330,000.
The respondent stipulated that it is engaged in commerce within
the. meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Paper Workers, L. I. U. No. 292, is a labor organization
affiliated with the Committee for Industrial Organization 19 admit-
ting to membership employees of the respondent.
Quality Art Shop Union is an unaffiliated labor organization
restricting membership to employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the Intervenor, and support
thereto; other interference, restraint, and coercion
1. Chronology of events
In the latter part of September and early in October 1937 em-
ployees in the respondent's stock and shipping departments initiated
organization of the Union. On Saturday, October 16, Joe Katz,
foreman of the shipping department, stopped at the Court Square
Restaurant, where he found a number of stock and shipping em-
ployees holding a union meeting. He related the incident to Phil
Katz, vice president of the respondent, who in turn reported the
meeting to their brother Louis Katz, president of the respondent.
Louis Katz testified that he then appointed Phil Katz, Clement
Swan, head of the art department, and Harry Hankoff, credit man-
ager and supervisory head of the stock and shipping departments, to
investigate any grievances that existed among the employees and
report "what the disputes were, if any," so that he could "straighten
them out." Katz further testified that he also instructed them to
have the employees elect "a delegate or one individual from a de-
partment-with instructions that the person appointed must be voted
Is See footnote 1, supra.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by that department to be impartial, and that individual get griev-
ances and to report." On the morning of October 18 Phil Katz held
separate meetings during working hours with the stock and shipping
departments which were composed of male employees. Irving Gold-
stein, a shipping-room employee, testified that Katz told them that
the respondent knew of their attendance at the union meeting, that
the C. I. O. was composed of racketeers, and that he would not have
objected to their joining the American Federation of Labor because
"they were gentlemen." Goldstein stated that Katz then suggested
the election of a committee to present their grievances to him, stating
that they should be able to "iron out matters" between themselves.
According to the testimony of Edward Axelrod, a stockroom em-
ployee, Phil Katz made a similar speech in the stock department,
telling the employees there that he. had heard of their "going to an
outside union, trying to get better conditions," that the Union
"wasn't really any good," and that instead of paying "a lot of dues"
they could derive greater benefit; by dealing personally with him.
Phil Katz testified that he had addressed both the stock and the
shipping employees in the same manner, telling them that he had
heard "there was a lot of rumbling going around the place, especially
in the stock and shipping rooms," and that he knew of their attend-
ance at a union meeting 2 days before. Katz stated that he then
called attention to the respondent's fairness in respecting their de-
mands on previous occasions, and suggested that they appoint a
committee to present their grievances for settlement. Katz denied
voicing any opposition to or making disparaging remarks concerning
the Union, and stated that when Goldstein expressed the desire for
union representation, he replied : "If it is the wish of all the people,
then it is all right; but if it is the wish of one man, we are not
interested." The Trial Examiner who saw and heard the witnesses
found that Goldstein and Axelrod correctly stated what occurred
at these meetings, and in the light of the clearly established conduct
of the respondent shortly after these meetings we are satisfied that
Katz made the statements attributed to him. Since, by his own
admission, Katz sought to divert the stock and shipping employees
from their efforts to organize the Union, the respondent by Katz's
statements clearly interfered with, restrained, and coerced the em-
ployees in the exercise of the rights guaranteed by Section 7 of
the Act.
In accordance with the suggestion made by Phil Katz, committees
composed of four representatives from each of these departments met
that same morning during working hours without loss of pay to discuss
their grievances with Katz, Hankoff, and Swan. Axelrod was spokes-
man for the stockroom, and Goldstein headed the committee from the
shipping department. These meetings were likewise held separately,
QUALITY ART NOVELTY 'COMPANY, INC. 827
Phil Katz refusing to grant a request made by the representative to
present their grievances at a joint meeting. In response to their ex-
pressed preference for union representation, the committees were
asked if there was anything that the respondent could not discuss with
them. The representatives then presented their demands which in-
•cluded,a 40-hour week, a $3.00 increase in pay for permanent employees
and $2.00 for temporary employees, vacation with pay, seniority status,
additional compensation benefits for time lost due to injuries, and a
written contract. The discussion of these demands was continued at
.a second meeting with the committees that afternoon, at which time
they were told that the demands were "unjust" and "too high," and
would have to be referred to Louis Katz for final decision. The re-
quest for a written contract was also dismissed by- Phil Katz with a
statement that he did not think Louis Katz would grant it,and that
the management could be trusted to keep its word. During working
hours the following day, Hankoff arranged for and addressed a joint
meeting of the stock and shipping committees in the office of the Com-
mercial Die Cutting Company which occupied the fourth floor of the
same building housing the respondent's operations. Hankoff urged
them to trust him and made a further effort to convince them that what-
ever grievances they might have could best be settled through dealing
directly with Louis Katz. No definite agreements were arrived at
during these conferences, and the respondent made no concessions until
after a meeting of the stock and shipping representatives with Louis
Katz on or about October 27.
On the morning of October 21, 1937, union circulars announcing a
meeting to be held that night were distributed to the respondent's
employees as they entered the plant. Helen Ruderman, examining-
room employee, testified that as the women were changing to their
working clothes, Freida Frank, supervisory inspector of the various
departments employing women with authority to hire and discharge,
entered and warned them not to attend the union meeting, adding :
"If I never was a rat I will be one now." Frank denied making these
statements or ever having spoken to the women employees about union
matters or any particular union. The Trial Examiner credited Ruder-
man's testimony, and in view of Frank's evasive and frequently trans-
parently untrue testimony, we find that she questioned the employees
on this occasion as to their intention to attend the union meeting and
made the self-characterization of her conduct testified to by Ruder-
man.20 During the same morning, the girls in the packing depart-
80 By thus questioning employees as to their attitude toward the Union ( and, as we shall
point out below, by questioning them at other times as to their union affiliation and activi-
ties ), the respondent engaged in unfair labor practices within the meaning of Section 8 (1)
of the Act. See Matter of Foote Brothers Gear and Machine Corporation and United
Office and Professional Workers of America, No. 24, 14 N. L. R. B. 1045, and cases cited
in footnote 24 therein.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment were called into the office of their foreman, Moe Brodsky, by
Mack Setchen, supervisory manager of all girls in the plant. Setchen
questioned them as to whether or not they had been asked to join the
Union, and if so, not to be afraid to tell him.21 No one volunteered a
reply, and he went on to state that there was no need for their going
elsewhere for assistance, since he had always been and would continue
to be fair with the girls.
Early that afternoon, at the request of Swan, Setchen ordered all
the women employees working in other departments situated on the
various floors of the plant to assemble in the examining room on the
second floor. Approximately 150 girls were present, including both
piece and time workers, the time workers 'suffering no loss in pay.
Also present were, Frank and Foreladies Pauline Prince, Yetta Gold,
and Anna Nasta. Swan testified that "the management got together
when they heard of certain rumors of dissatisfaction, and requested me
to speak to the girls and express the views of the management in that
connection." Louis Katz testified that when he appointed Phil Katz,
Swan, and Hankoff to investigate the existence of any grievances
among the respondent's employees following the reported attendance
of the stock and shipping employees at the union meeting on October
16, he delegated Swan "to personally speak to the girls." Swan
further testified that in addressing the girls he told them that the
management had been advised of some dissatisfaction in "certain de-
partments," and stated that the management was already negotiating
with two departments that had grievances and "was ready to do the
same thing with all other departments that might have had anything
to complain about, or requests to make." Swan then suggested the
election of departmental representatives to present to him "whatever
complaints they had" so that he might be able to discuss them with
Louis Katz. Accordilig to the testimony of Ruderman and Ruth
Horowitz, a packing-room employee, Swan stated that the C. I. .O.
was a bunch of "racketeers," requiring the payment of $8.00 a month
in dues, and that there was no need to join the Union or any other
"outside" organization. They also testified that in addition to sug-
gesting the election of departmental representatives to meet with the
management, he told them they could form 'an "inside" or "company"
union. Swan denied calling the C. I. O. a bunch of racketeers or men-
tioning any dues, but admitted that he "just told the girls it didn't
matter who represented them as long as they were honest, that in
various groups where they were organized groups, the American Fed-
eration of Labor or the C. I. 0., or anyone that Dewey investigated,
proved that everything was not rosy and honest . . ." Although
21 See footnote 20, supra.
QUALITY ART NOVELTY 'COMPANY, INC. 829
Swan further denied advocating the formation of a company union,
he admitted stating in response to a suggestion made by one of the
employees that a company union be formed that the respondent had no
objection to a "company" or "shop" union. At the close of Swan's
speech, Ruderman and Feld, another examining-room employee, raised
the question as to union representation, which brought forth objections
from some of the other employees. Swan testified that he quieted the
protest, and replied that grievances "could be adjusted with the man-
agement just as well in this way (departmental representatives) as
through outside sources . . . without any difficulty or differences."
Sophie Horowitz, packing-room employee, then spoke against the
C. I. 0. stating that they did not need assistance from any outside
union, and Gertrude Silver, examining employee, declared that the
girls were satisfied and that all they "had to do was follow what Mr.
Swan said." When Swan suggested that a vote be taken to determine
their choice as to the A. F. of L., the C. I. 0., or a company union,
Ruderman protested that such a vote could be properly conducted only
by the National Labor Relations Board, and the suggestion was there-
upon abandoned. Setchen also spoke to the girls following Swan's
speech, stating that he also was just an employee and that he had
always been fair in protecting their interests. He told them to have
faith in what Swan had, said and stated that he saw no reason why'
they could not, all "get together." Setchen testified that Swan told
the employees that since the respondent had always treated them
fairly they "would be able to do the right thing by continuing to deal
with the house." By this statement, Setchen understood that the
employees should deal with the respondent "without benefit of an
outside organization." Swan offered no justification for admittedly
interjecting into his speech reference to the Dewey investigation, and
it is apparent from his own testimony that he sought thereby to iden-
tify nationally affiliated unions as rackets. We find, as did the Trial
Examiner, that he made the remarks deprecatory to the Union to
which Ruderman and Ruth Horowitz testified..22 Indeed, by propos-
ing that the employees elect representatives from among themselves to
ascertain what grievances existed and to present them to the respond-
ent, Swan clearly conveyed to the employees that the respondent at
least regarded "outside" representation as unnecessary and that the
respondent preferred to deal with representatives who were them-
22 By such remarks the respondent clearly interfered with , restrained, and coerced its
employees in their right to self-organization . See Matter of Lucuray , Inc. and Interna-
tional Ladies' Garment Workers' Union , 16 N. L. R. B. 37 ; Matter of The Yale d
Towne Manufacturing Company and Amalgamated Association of Iron, Steel and Tin
Workers of North America, Lodge No. 1647, through. the Steel Workers Organizing Commit-
tee, affiliated with the Committee for Industrial Organization, 17 N. L. R. B. 666.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selves its employees.23 By making the proposal, the respondent en-
gaged in unfair labor practices within the meaning of Section '8 (1)
of the Act.24 Moreover, although not in so many words directed to
the organization upon a formal and permanent basis, Swan's proposal
was in substance for the formation of an "inside" labor organization.25-
The question as to whether the respondent had no objection to a "com-
pany union" was obviously evoked by Swan's speech; and Swan's
answer removed any possible doubt that the questioner correctly
gauged the implications of his statement. The suggestion by Swan
that a vote be taken to determine the choice of the employees cannot
be regarded as an expression of the respondent's indifference. Where,
as in the instant case, such a suggestion follows immediately upon an
employer's expression of hostility to "outside" organizations, preference
for and proposal of an "inside" organization, employees are left in
no doubt that what is sought is not an expression of free choice but a
confirmation of the wishes of their employer. As we have often
pointed out, the holding of such an election by an employer under
such circumstances interferes with, restrains, and coerces employees in
the rights guaranteed them by Section 7 of the Act.26 We are of the
opinion that the proposal of an election, though aborted by the
assertion of their rights by some employees, is nonetheless an unfair
'labor practice.
On the same afternoon that he addressed the women employees,
Swan also held a meeting with the employees in the press department,
at which, as appears from his own testimony, he expressed the "atti-
tude of the management" as previously stated to the women employees.
Swan testified that this was only a "courtesy meeting" because the
respondent "knew they (pressmen) were satisfied and had no demands
to make," a conclusion which he predicated upon the fact that, accord-
23 This also was the plain import of Setchen's speech.
84 See Matter of Acme Air Appliance Company , Inc. and Local No. 1228 of the United
Electrical Radio & Machine Workers of America, C . I. 0., 10 N. L . R. B. 1385, 1390;
Matter of W. F. & John Barnes Company and United Automobile Workers of America,
Local Union No. 432, 12 N . L. R. B. 1028, 1034.
m Section 2 (5) of the Act defines a labor organization as "any organization of any
kind , or any agency or employee representation committee or plan. In which employees
participate and which exists for the purpose, in whole or in part, of Cealing with em-
ployers concerning grievances , labor disputes , wages, rates of pay , hours of employment,
or conditions of work." Of course what is here said with reference to the import of
Swan's proposal is equally applicable to the proposal made the day before to the stock and
shipping departments.
26 See Matter of Northrop Corporation and United Automobile Workers, Local No. 229,
3 N. L. R . B. 228, 234; Matter of The Heller Brothers Company, of 1 ewconrerstown and
International Brotherhood of Blacksmiths , Drop Forgers, and Helpers, 7 N. L. R. B. 646,
657; Matter of Automotive Maintenance Mach4neryyi Company and Steel Workers Organiz-
ing Committee on Behalf of Amalgamated Association of Iron, Steel & Tin Workers of
North America, Lodge 1744, 13 N. L. R. B. 328; Matter of Laird, Schober Company, Inc.
and United Shoe Workers of America, 14 N. L. R. B. 1152; cf. Matter of J. Wise &
Sons Company and United Electrical, Radio & Machine Workers of America, 12 N. L. R. B.
601, 614.
. QUALITY ART NOVELTY COI'rPANY, INC. . 831
ing to him, the pressmen were earning more than the rate sponsored
by the American Federation of Labor.27
Shortly after the meeting in the examining room, the women em-
ployees held elections in their respective departments for the purpose
of selecting representatives in accordance with Swan's suggestion.
While Ruth Horowitz and Blanche Jonas were discussing unionism,
prior to the election in the packing and labeling departments, Pauline
Paulker, another employee, called in Setchen and told him that the
election was being disrupted by this discussion, whereupon Setchen
announced that they were there for the purpose of electing repre-
sentatives and not for a discussion of unions. In the election which
followed, Paulker and Sophie Horowitz were chosen to represent the
packing and labeling employees as a single department. The election
in the examining . room resulted in the selection of Ruderman and
Anne Seidelman. That same afternoon, all the women representa-
tives were instructed to consult the employees in their departments
as to grievances and then meet as a group in the salesroom office with
Swan and Setchen.28 The respondent had been requested to permit
the stock and shipping representatives to meet jointly with the repre-
sentatives of the women employees, but it refused to grant permission
with the statement that each department would be dealt with
individually.
In addressing the women representatives, Swan reiterated the state-
ments made in his speech in the examining room, and stated that
the A. F. of L. representatives were "gent.lemen" because, according
to Swan, when they visited the plant they decided that the respond-
ent's treatment of its employees did not warrant any attempt to or-
ganize. When he finished speaking, Paulker spoke in favor of
forming a shop union and stated that there was no need for an outside
organization to represent them. A general discussion of grievances
was held at the meeting, but it led to no definite commitments by the
respondent.
As the representatives were returning from the sales office, Prince
-asked some of them if they had settled their grievances, and further
queried: "You are not going to the meeting tonight, are you?" refer-.
ring to the union meeting previously announced. When some of the
girls replied in the negative, Prince said: "Girls, thank you very
much. I certainly appreciate it." 29 That evening, Prince, Frank,
and Setchen admittedly stopped in front of the union headquarters
n Swan was the only witness who testified regarding - his speech to the press employees.
28 Korn and Frankel, salesmen for the respondent , were also present at this meeting.
29As we have pointed out above ( footnote 21), such interrogation was in violation of
the rights of employees under the Act. Likewise violative of their rights was Prince's
declaration of "appreciation " of the answer of some that they did not intend to attend
the meeting of the Union.
832 DECISIONS . OF : NATIONAL LABOR RELATIONS BOARD
to see who attended the meeting. Prince testified that "for curiosity's
sake I wanted to know who was going in." Frank's explanation was
that "we were curious to see what was going on." Setchen's version
was that when they saw the crowd of employees they were "interested
in what the employees had or were doing, so we stopped and then we
started gathering information from individuals who passed by."
Although Prince denied discussing the meeting prior to their stop-
ping, Setchen admitted that he had discussed it with Prince and
Frank during the day, but could not "recall" what they had said. As
we have pointed out above, earlier in the day Frank had warned the
women not to attend the meeting and Setchen had interrogated them
as to whether they had been asked to join the Union. In view of these
facts, the further fact that Prince, Frank, and Setchen discussed the
meeting during the day, and the respondent's conduct prior to and
following the meeting, we are satisfied and find that the afore-
mentioned supervisory employees engaged in surveillance of the union
meeting in order to determine which employees were attending. Such
conduct, particularly following the expression of the respondent's
hostility to the Union, patently constituted interference with the
rights of employees guaranteed by Section 7 of the Act.
On October 22, 1937, the following day, in accordance with their
custom, the girls from the various departments gathered in the exam-
ining room during the lunch hour for a "wedding party" for two of
the women employees soon to be married. Irving Goldstein took this
opportunity to make a speech to the girls urging their membership
in the Union and advising resistance to intimidation. Prince, who
told him to stop, stating, "we don't allow any speeches held on the
premises," became excited and telephoned Setchen. Shortly there-
after Louis Katz and Phil Katz came into the examining room.30
Prince told Phil Katz that Ruderman was the cause of all the trouble,
and he reprimanded Ruderman for starting a "commotion" in the
plant. The record fails to show that Ruderman was in any way
responsible for Goldstein's speech, or that she had participated in
the incident except that she had asked Frank whether or not Goldstein
had a right to speak and had been told by Frank to "shut up." Phil
Katz told Goldstein he was discharged, but Louis Katz intervened and
took Goldstein outside in the corridor near the gravure department,
where he told him that many of the employees were against the C. 1. 0.
and that "if anyone ever made any attempts to interfere with Mr.
Louis Katz, they would be hurt." Katz further told Goldstein that
he should "mind his own business" and asked him what right he had
80 Both Louis and Phil Katz testified that they had been called to the examining room
by a telephone call from an unidentified person.
QUALITY ART 'NOVELTY ICOM'PANY, INC. 833
"to come into the plant and make a disturbance." 81 Goldstein then
accompanied Katz to an office on the third floor, where they were
joined by Hankoff. Goldstein had been studying accountancy, and
Hankoff told him that he was a college man and "should not associate
with these people," and that if he had a bad record the character
committee of the school would not grant him a degree.
On the morning of October 22, Charles Lindenman, press employee,
with permission of his foreman left his two helpers in charge of the
automatic press which he operated and with Victor Tepeilke, another
press employee, went to a restaurant near the plant to telephone George
Glassgold, an attorney.32 The purpose of the telephone call was to
make arrangements for Glassgold and Herbert S. Klein, his associate,
to address a meeting of departmental representatives to be held that,
afternoon at the Thompson Diner.33 Lindenman testified that upon
learning of the intention of the C. I. O. to organize the plant he had
telephoned Glassgold 2 or 3 days prior at the suggestion of one Wen-
dell Weiss, a friend of, Glassgold's, for information regarding the
organizing of a shop: union, and that-this initial contact with Glass-
gold was made without first discussing it with any. of the press em-
ployees. Lindenman testified that he took this step to prevent or-
ganization by the Union, because as far as the pressroom was con-
cerned "there was really nothing that the C. I. O. had that they could
offer to do for is, because as long as we had been working, any time
that we did have any grievances, . . . we were always able to do it
ourselves ... we didn't need anybody to talk for us, or do anything
for us." We shall defer consideration of the credibility of Linden-
man's testimony until we have reviewed the events of the next few
days.
At 3:30 that afternoon, Lindenman, Tepeilke, and Dominick
Rigante and James Smyth, pressroom employees, went to the, various
departments. to summon the representatives to the Diner meeting. At
Lindenman's request, Prince called Ruderman and Seidelman from
their work, and Lindenman told them to go to the Diner, that there
was "something to be discussed." Lindenman also spoke to Sophie
Horowitz, packing-room representative, who testified that he did not
tell her the nature of the meeting, but that Brodsky, her foreman,
granted permission for her to leave.34 .Horowitz further testified that
81 Louis Katz testified that it was his understanding that Goldstein had been "destroy.
ing the people 's minds of some kind against their work there . . . stirring up trouble
among themselves . . . demoralizing their minds."
M Lindenman testified that,it was customary to leave his work without permission of the
foreman, and that he lost no pay so long as his press was not idle.
s3 Also referred-to in the record as the Ideal Diner.
54 It appears from Horowitz 's testimony that there was a rule against leaving the build-
ing during working hours, and that this was the reason she asked Brodsky 's permission
to leave.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she understood beforehand that the meeting had concerned the forma-
tion of a shop union, the girls having discussed it that day.' She also
stated that she had previously expressed her preference for a shop
union to Prince and Lindemnan, and that they agreed with her, stat-
ing that "they were going to form a shop union." As Ruderman,
Seidelman, and Anna Feld, representative of the cellophane depart-
ment, were leaving the plant for the Thompson Diner, Phil Katz
asked Ruderman where she was going. When she replied that Prince
had told them to attend the meeting, he said : "Miss Prince, if Miss
Prince told you, all right, and go ahead."
All the departmental representatives who had conferred with Swan
the day before were present at the meeting. The stock and shipping
representatives were-also informed of the meeting by two of the afore-
mentioned pressmen, but were shortly afterwards ordered not to at-
tend. Lindenman and Tepeilke represented the press department, al-
though there is no showing in the record as to how and when they
were selected by the press employees. Klein and Glassgold addressed
the group, disparaged the Union, and described the benefits that in
their opinion were to be derived from the formation of a shop union
of their own. Ruderman and several others favorable to the Union
expressed their opposition to these statements and asserted that they
did not want a company union and would decide for themselves what
organization would represent them. They then asked Klein and
Glassgold who had sent them there and who was paying for their
services. To this question, the attorneys replied that they had been
called by some of the pressmen who had heard about "the work they
were doing in other shops" and were requested to assist in the forma-
tion of a shop union among the respondent's employees.
When Ruderman came to work the following morning, Saturday,
October 23, Prince stated to her that the girls in the examining de-
paItment no longer wanted her to act. as their representative, because
she "had been talking a lot about the C. I. O." and was not "really
representing the girls." Ruderman testified that she replied to Prince
that if the girls "felt that way they could come and tell me about
it, and that it was none of her (Prince's) affairs who was delegate
of the department." Ruderman further stated that she then turned
to the girls and asked if they were satisfied with her as their repre-
sentative, to which they replied in the affirmative, and nothing further
was said. Prince testified that 3 or 4 of the 30 girls in the examining
department had told her as a group that Ruderman was not wanted
as their representative and that they thought it was her duty as head
of the department to so inform Ruderman. According to Prince,
when these girls told her "we don't want Helen" she understood they
were speaking for the whole department. Gertrude Silver, who spoke
'QUALITY ART NOVELTY - COII'PANY, INC. 835
in support of Swan's suggestions at the October 21 meeting, testified
that she was one of the girls who told Prince they did not want
Ruderman as a representative.
At about 10: 30 that same morning, the women employees were
sent by their supervisors to the examining room where Frank an-
nounced that a vote was to be taken as to what union they desired.
In the presence of Frank and Prince, Lindenman, who was accom-
panied by Smyth and Tepeilke, told those assembled that the press-
room employees were not in favor of the Union, and that he was
there to determine if they wanted to join the shop union which they
proposed to form, or if they wanted to join the C. I. O. with the
stock and shipping departments. Minnie Goldstein, examining-room
employee who testified for the respondent, stated that Lindenman's
stuttering made it difficult for the girls to understand him, so Prince
repeated what he had said. Ruth Horowitz then protested that
the girls did not have sufficient information concerning any union
to make a choice and was answered by Frank to the effect that since
she had attended the union meeting on October 21 she could tell
them about it.3e Following his address, Lindenman and the other
two pressmen conducted a secret ballot. However, the results thereof
were not made known because, so Lindenman testified, "some wrote
C. I. 0., some wrote Shop Union, and some wrote no union, some
said Yes, some said No, and it was hard to determine just what
they meant by the yes and no votes." Prince testified that when she
asked Lindenman "who gave him permission to speak to the girls"
that he told her he had the consent of the "management." Linden-
rnan denied telling Prince that he had obtained such permission, and
asserted that he merely told the heads of the departments that he
"wanted to speak to the girls." Lindenman further denied that
Prince or Frank were present during the balloting. Prince and
Frank made no denial of their presence when the vote was taken,
and in view of the testimony of Goldstein and Horowitz, we find that
they were present.
At about 10 minutes before noon that same Saturday, October 23,
the girls in the examining room were told by Supervisor Frank to
stop work and go to a meeting at a given address near the Sherry
Building.86 The girls in the packing department were "advised" of
the meeting shortly before noon 37 by their foreman, Moe Brodsky,
and the meeting was attended by Louis Kaye, substitute foreman in
3' We have pointed out above that Frank had engaged in surveillance of the union meet-
ing. By malting the remark to Horowitz . set forth in the text , she plainly informed the
employees that the respondent had engaged in such surveillance.
M The meeting place was referred to in the record as Huebner 's Hall, Huebner 's Bar and
Grill , and Frank ' s Diner.
n'' This was half an hour or more before the usual quitting time.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the box-assortment department, Foreladies Gold and Nasta, Mannie'
Solomon, timekeeper and paymaster, and Harry Horowitz, a buyer
for the respondent. Indeed, Setchen and Frank were present out-
side the meeting, apparently in anticipation of the motion by Ger-
trude Silver for their admittance. The motion was defeated. How- :
ever, when Ruderman protested against the presence of foreladies
at the meeting, she was told that they were entitled to be there as
well as any of the other employees." The stock and shipping-room
employees, among whom there was strong sentiment for the Union,
had not ' been informed of the meeting, but on learning of it after
they had gathered for a union meeting elsewhere, they adjourned to'
attend.
Lindenman testified that due to the confused results of the ballot,
several. of the press employees thought it best to hold a meeting of all
the employees to discuss the organization of a shop union. Linden=
man and Dominick Rigante, another pressman, further testified that
they furnished the $20 with which Tepeilke and Smyth rented a meet-
ing.place. The discussion of the meeting, the hiring of the hall, and the
notification of the other employees by Lindenman and his assistants,
all took place during working hours. Smyth, who was a time worker,
testified that he lost no working time when he left the plant to rent
the meeting hall. A majority of employees from all departments
attended the meeting, and the discussion centered around the forma-
tion of a shop union, Gertrude Silver and Danny Kayser, pressroom
employee, speaking in favor of an organization of their own and
expressing hostility towards the Union. A motion to permit a union
representative to address them was lost. As the meeting adjourned,
those leaving were handed application cards bearing the title
"Quality' Art Shop Union," and further stating: "We the above
signed do not want any affiliation in any outside union." This was
the first appearance of the Intervenor's name, which according to the
testimony of Lindenman had been decided upon by himself and
Robert Quinones, another press employee. -
On Monday, October 25, Ruderman. was transferred from the
examining department to the box-assortment department. Prince
testified that she overheard Ruderman say : "H'm! I hate her !" and
that she told Ruderman : "Helen, my feelings are mutual." Prince
then called Setchen and requested that Ruderman be transferred.
Ruderman protested to Setchen that she had merely remarked to an-
other girl that she disliked Prince, and asserted Prince was requesting
her transfer because she had been talking in favor of the Union.
38 No explanation was offered for the presence of Kaye, Gold, Nasta, Solomon, or Horo-
witz at the meeting ; or for the presence of Setchen and Frank outside. As we have
noted above. Silver admitted she had discussed with Prince and Lindenman the formation
of a "shop union."
QUALITY ART NOVELTY 'COM'PANY, INC. 837
Setchen then called over two other foreladies who were passing by
and asked them if they did not think it fair to transfer Ruderman to
another department. They replied that they had never been insulted,
one stating that "when a girl isn't just so, we speak to the girl and
somehow she apologizes, or she sort of comes around," although they
both agreed with Setchen that a transfer would be fair. That after-
noon Ruderman was transferred by Setchen to the box-assortment
department, where she was more or less separated from the other
girls. Ruderman protested her transfer to Klein at a meeting of the
Intervenor the next day, stating that she had been transferred be-
cause of her "talking for the C. I. 0." Following the meeting,
Sophie Horowitz, who later became vice president of the Intervenor,
spoke to Klein and upon his advice saw Louis Katz the following day,
October 27. Horowitz testified that she told Katz that due to the cur-
rent talk about the transfer being discriminatory, it would be "much
better" to have Ruderman reinstated in the examining department,
and that he agreed to do so. Ruderman was transferred back to the
examining room that same day. Prince testified that Ruderman was
required to apologize as a condition of returning to her former job.
Ruderman, on the other hand, denied that she had apologized, and
testified that Prince had told her she could come back if she "would
be good" and "not discuss unionism during working hours." When
Ruderman returned to the packing department Prince placed her at a
table directly in front of Prince's desk, although Ruderman had
formerly worked in the rear of the room.
Upon her return, Ruderman learned that Minnie Goldstein and
Sydelle Hoffman, who had been nominated but failed of election on
October 21, were acting as representatives for the examining-room
employees. Both Prince and Goldstein testified that the change in
representatives.had taken place at an election held before Ruderman's
transfer to the box-assortment department. According to Goldstein,
the election took place during' working hours. Prince at first
stated that she did not know when the election took place, but later
testified that she had been informed of its occurrence but at the time
was in her office "half a block" away. However, Goldstein's version
of the incident was that while some of the girls were speaking to
Prince on October 22, others addressed the rest of the employees
and "right then and there they voted," and that Ruderman was
"in the ladies' room at the time." 30
89 The claim by Goldstein that Ruderman was out of the room at the time the alleged
vote was taken would not account for the fact that Ruderman did not learn until October
27 that she had been displaced as representative. For Goldstein testified that on the day
of her election she circulated among the girls to ascertain their grievances, conferred with
Louis Katz concerning them, and reported to her fellow employees the results of the
conference.
283031-41-vol. 20-54
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find unpersuasive the respondent's explanation for Ruderman's
ouster as one of the representatives of the examining-room employees
and her transfer to the box-assortment department. On October 21
Ruderman's protest had resulted in the abandonment of a poll of
employees sought to be held by the respondent immediately following
the expression of its hostility towards the Union and its desire and
preference for an inside organization. During the election of de-
partmental representatives, the respondent had stopped discussion
of unions, and on the following day had prevented Irving Goldstein
from making any rejoinder to Swan's speech of October 21, even
though the latter had spoken-during working hours, whereas Gold-
stein sought to speak ' during the lunch -period. On this occasion
Ruderman, because of her inquiry as to whether Goldstein had a
right to speak, had not only been told by Frank to "shut up," but
had been pointed out by Prince to Phil Katz as responsible for the
"commotion," and had been threatened with discharge by Katz.
That afternoon Ruderman had not only expressed her opposition
to the formation of a "shop union," which the respondent had plainly
indicated was acceptable to it, but had by her questions come close
to declaring that she believed the respondent responsible for the
projected "shop union." While such conduct on her part might
have displeased some of her fellow employees, the significant fact,
is that it was not they but Prince who the next morning purported
to communicate this alleged change in sentiment."' Moreover,
Prince's attempt to place herself away from the scene of the election
allegedly thereupon held is belied by Minnie Goldstein's account
of the election and, like Goldstein's alleged recollection that Ruder-
man was "in the ladies' room at the time," was, we are satisfied, a
transparent attempt to account for the fact that Ruderman had no
knowledge of the choice of a successor until after she had been
transferred to and retransferred from the box-assortment depart-
ment.41 Furthermore, Ruderman's remark as to her feelings toward
Prince, alleged to be the reason for her transfer, was manifestly a
protest against Prince's actions toward her on account of her activi-
ties on behalf of the Union and her opposition to a "shop union." 42
40 We note that Gertrude Silver, who testified that she was one of the group who told
Prince that they did not want Ruderman as a representative, admitted she had at least as
early as the day before been told by Prince and Lindenman that "they were going to form
a shop union."
41 See footnote 39, supra. Goldstein was an obviously untruthful witness. Despite the
admissions of Swan to the contrary, Goldstein testified that she was "positive" that neither
a "shop union" nor a "company union" was mentioned at the meeting held by Swan on
October 21, and stated that she did not "remember" Swan saying "anything about unions"
or making any remarks concerning the racketeering disclosed by the Dewey investigation.
42 No claim is made that there were any personal difficulties between Ruderman and
Prince.
QUALITY ART NOVELTY 1001APANY , INC. 839
We need not decide whether Ruderman 's remark might, in other
circumstances , be regarded as exceeding the bounds of proper dis-
course. Certainly it was a slight expression as compared with the
peremptory vulgarity of Frank's command to "shut up." When
Louis Katz was advised that the transfer was causing an unfavorable
reaction as the result of Rudernian 's statements at the meeting to
organize the Intervenor , she was returned to her former position,.
but under special observation by Prince who warned her that she
"be good" and "not discuss unionism during working hours," al-
though no such inj unction was placed . upon employees active on
behalf of the Intervenor . We conclude upon these facts, and upon
the entire record , that the transfer was occasioned by Ruderman's
assistance to the Union and her opposition to the Intervenor.
On October 26, the day following Ruderman 's transfer , the girls
were instructed by Prince to leave their work shortly before 5 p. in.,
their regular quitting hour, to attend a meeting of the Intervenor
at Volkert's Hall . As they passed the time clock , they were handed
circulars by Henry Goldberger , folding - department employee, which
bore the heading , "First Meeting of the Quality Shop Union," and