S. Blechman & Sons, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1940

20 N.L.R.B. 495 (N.L.R.B. 1940)

In the Matter of S. BLECHMAN & SONS, INO. and UNITED WHOLESALE
EMPLOYEES OF NEW YORK , LOCAL No. 65, U. R. E. A.-C. I. O.
Case No. C-1081.Decided February 16, 1940
Dry Goods and General Merchandise Jobbing Industry-Interference, Re-
straint , and Coercion: anti-union statement by supervisory employee; threat
to discharge union leader-Discrimination: discharge of employees because of
union membership and activities and opposition to administration of "inside"
organization-Reinstatement Ordered: of discharged employees-Back Pay:
awarded-Procedure: charge filed by union found guilty of violating injunction
against picketing respondent's place of business : no defense.
Mr. Mark Lauter, for the Board.
Mr. David Mickelsokni, of New York City, for the respondent.
Mr. Harry Sacker, of New York City, for the Union.
Mr. George Turi.tz, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Whole-
sale Employees of New York, Local 65, United Retail Employees of
America, herein called the Union,' the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Second Region (New York City) issued its complaint dated March
.19, 1938, against S. Blechman & Sons, Inc., herein called the respond-
ent, alleging that the respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act.
With respect to the unfair labor practices the complaint, so far
as is here material, alleged, in substance: (1) that on or about Au-
gust 5, 1937, the respondent, in violation of Section 8 (3) of the
1 After the issuance of the complaint but prior to the hearing the name of the Union
was changed to United Wholesale and Warehouse Employees ' Union , Local 65 , United Retail
Employees of America.
20 N. L. R. B., No. 52.
495
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, discharged Sidney Rosenthal, and on or about August 6, 1937,
discharged Tobias Gartner and Sol Yoffie, all three employees of
the respondent, because they joined and assisted the Union and
engaged in other concerted activities for the purposes of collective
bargaining and. other mutual aid or protection, and that the respond-
ent refused and continued to refuse to reinstate them, thereby dis-
criminating in regard to their hire and tenure of employment; (2)
that from on or about July 26, 1937, to the issuance. of the complaint
the respondent urged, persuaded, and warned its employees to refrain
from becoming and remaining members of the Union and threatened
its employees with discharge and other reprisals if they became or
remained members thereof; and (3) that by the aforesaid acts and
by other acts the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
Copies of the complaint, accompanied by notice of hearing thereon
and copies of the amended charge, were duly served upon the re-
spondent and the Union.
On or about March 24, 1938, the respondent filed its answer, in
which it denied all the material allegations of the complaint with
respect to the unfair labor practices, admitting, however, that it dis-
charged from its employ the three employees named in the complaint.
The answer affirmatively alleged that the Union had forfeited all
right to obtain relief in this proceeding, having been found guilty
of contempt of court because of misconduct toward the respondent.
Pursuant to notice a hearing was held at New York City on Sep-
tember 19, 20, and 21, 1938, before William Seagle, the Trial Ex-
aminer duly designated by the Board. The Board, the respondent,
and the Union were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses , and to introduce evidence on the issues was afforded the
Board and the respondent. On objection by counsel for the Board the
Trial Examiner rejected an offer by the respondent to prove that the
Union, because of misconduct, had been enjoined from picketing the
respondent's place of business, that it had violated such injunction on
and after April 14, 1937, that it had been found guilty of such viola-
tion and fined therefor, and that the fine had been paid. The Trial
Examiner's ruling is hereby affirmed.2 During the course of the hear-
ing the Trial Examiner made a number of rulings on motions,
including various motions by the respondent to dismiss the complaint,
7 See National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862
(C. C. A. 2), cert. denied. 304 U. S. 576, enf'g Matter of Remington Rand, Inc. and Reming-
ton Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L.
R. B. 626 , where the court rejected a eimiiar defense in a case involving a violation of
Section 8 (5) of the Act.
S. BLECHMAN- & SONS, INC. 497
and on other objections to the admission of evidence. At the close
of the Board's case the Trial Examiner, on motion by the respondent
to dismiss the complaint with respect to Sol Yoffie and with the con-
sent of counsel for the Board, ordered the name of said Yoffie stricken
from the complaint, no evidence having been presented with respect
to him. The Trial Examiner at the close of the hearing also granted
a motion by counsel for the Board to conform the complaint to the
proof with respect to variances in dates, names, and places. The
Board has reviewed all these rulings- of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. After the close of the hearing, the respondent submitted
a brief to the Trial Examiner.
On or about December 5, 1938, the Trial Examiner filed his Inter-
Inediat.e Report, copies of which were duly served upon the respond-
ent and the Union, in which he denied the respondent's motions to
dismiss the complaint, rulings on which had been reserved at the
hearing, and found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
Net. He recommended that the respondent cease and desist from
such practices;- that it reinstate Gartner and Rosenthal to their
former positions with back pay, and that it take certain other affirm-
ative action to remedy the situation brought about by the unfair
labor practices found.
On December 7, 1938, the respondent filed exceptions to the Inter-
mediate Report, and requested an opportunity for oral argument be-
fore the Board. The respondent also filed a brief and a supplemental
memorandum with the Board. On September 28, 1939, pursuant to
notice, a hearing was held before the Board at Washington, D. C., for
the purposes of oral argument. The respondent and the Union ap-
peared by counsel and participated in the argument. At the oral
argument counsel for the respondent requested leave to file copies of
a certain statement appearing in the "Blechman Beacon," allegedly
a publication of the Union. This request was denied. The Board
has considered the respoident's exceptions to the Intermediate Report
and the arguments in support thereof, and, except in so far as they
are consistent with the findings, conclusions, and order below, finds
them to be without merit.
Upon the entire record in the case, the Board makes the following:
Fl-, DI NOS OF FACT
1. THE BUSINESS OF THE RESPONDENT
S. Blecluinan & Sons; Inc., is a Nev Yoi•k'corporation having its
place of business in New York City. It is a jobber engaged in the
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchase and sale of dry goods and general merchandise, including
household merchandise, underwear, knitted wear, notions, hosiery, and
gloves, selling to retail stores. In 1937 the respondent's sales
amounted to approximately $5,500,000, of which approximately 55 per
cent represented products shipped by the respondent to customers
outside of New York State. Its purchases in 1937 were approximately
12 or 13 per cent less than its sales, and approximately 70 per cent
thereof represented products shipped to the respondent's place of
business from points outside of New York State.3 It has approxi-
mately 228 employees, and is perhaps the largest concern in the in-
dustry in this country. The respondent stipulated that it is engaged
extensively in interstate commerce.
IT. THE ORGANIZATIONS INVOLVED
United Wholesale Employees of New York, Local 65, United Retail
Employees of America ,4 is a labor organization affiliated through its
parent.body, United Retail Employees of America, with the Committee
for Industrial Organization 5 and admitting employees of the respond-
ent to membership. Prior to July 1937 it was affiliated with the
American Federation of Labor under the name Wholesale Drygoods
Employees Union, Local No. 19932, American Federation of Labor.(;
III. THE UNFAIR LABOR PRACTICES
A. The background
The present proceeding is not the first one to be brought by the
Board against the respondent. In a prior proceeding" under Section
10 (c) of the Act, the Board found that the respondent had dominated,
interfered with, and contributed to the support of, Employees' Asso-
ciation of S. Blechman & Sons, Inc., herein called the Association, that
it had intimidated its employees to prevent their joining the Union,
3 The stipulation on which the above finding is based , set forth In the transcript of the
hearing , states that the respondent ' s "purchases for the . . . period amounted to approxi-
mately seventy per cent of the total amount of its purchases ." It is apparent from the
entire stipulation, however, that the purchases which were the subject of this statement
were purchases made by the respondent outside of the State of New York, and that the
omission from the stipulation of specific language to that effect was owing to a typo-
graphical error. In an earlier case involving this respondent , entitled Matter of S. Blech-
man & Sons, Inc . and United Wholesale Employees of New York, Local 65, Textile Workers.
Organizing Committee-Committee for Industrial Organization , 4 N. L. R. B. 15, the
respondent stipulated that it received approximately 70 per cent of its purchases from
points outside of the State of New York.
4 See footnote 1 above.
5 Now the Congress of Industrial Organizations.
6 The respondent contends that the Union is not the same organization as the organization
which was affiliated with the American Federation of Labor , but we do not agree with this
contention . In any event , the determination of this question does not materially affect any
of the issues of this proceeding.
7 4 N. L. R. B. 15.
S. BLECHMAN & SONS5 INC. 499
and that it had discharged Sam Keenholtz, an employee of the re-
spondent, because of his union membership and activity. It dismissed
charges that the respondent had discriminatorily demoted Louis
Gordon and Tobias Gartner.8 Gartner was the same employee who
is named in the complaint in the present proceeding.9
The testimony in the present proceeding contains further indica-
tions of the respondent's domination, interference with, and support
of the Association, and of further acts of interference, restraint, and
coercion with respect to the rights of the employees. Marx D.
Slonim, who was the respondent's treasurer and had general super-
visory authority, admitted at the hearing that permission was still
accorded to the Association to collect dues on company time and prop-
erty, and that employees who were members of the Association were
allowed to hold meetings on company time to discuss grievances with
each other, no representative of the respondent being present. The
testimony also shows that other activities of the Association were
carried on openly at the respondent's place of business during working
hours, without objection by the respondent. Other acts of inter-
ference by the respondent with the employees' self-organization will
be pointed out below.
B. The disch un',.^aator2^ discharges; interference, restraint, and
coercion
Tobias Gartwer. Tobias Gartner, known at his place of employment,
and referred to at times in the record as "Teddy" Gartner, was hired
by the respondent as a salesman on April 24, 1933. He was discharged
on August 6, 1937, having been in the respondent's employ contin-
uously for over 4 years. He was a capable and efficient employee and,
except in respect to the last few months of his employment, the
respondent makes no contention to the contrary. His work was often
praised by officials of the respondent and he was placed in the "first
group," that is, the group of salesmen whose earnings were highest.
When Gartner started to work for the respondent his salary was only
$20.00 a week. At the time of his discharge he was receiving $29.00
a week plus commissions which brought his average earnings to ap-
proximately $32.00 a week. Before his employment with the respond-
ent he had had 7 years' experience as a salesman for another firm
and for a. time had conducted a business of his own.
Referred to in the former proceeding as Theodore Gartner . Allegations of discrimina-
tory demotion with respect to Sol Yoffie , another employee , referred to in the prior pro-
ceeding as Sol Joffe , were stricken from the complaint on motion of counsel for the Board.
9A petition for enforcement of the Board 's Order was filed with the Circuit Court of
Appeals for the Second Circuit but later was withdrawn , upon consent of the parties,
without prejudice to the Board 's right to file another petition for enforcement of the Order.
Soo DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gartner joined the Union in about August 1936, when it was known
as Wholesale Drygoods Employees' Union, Local No. 19932, American
Federation of Labor, and he was outstanding among the employees
in activity on its behalf. It was he, indeed, who was responsible for
bringing the organization into the respondent's place of business. He
was instrumental in signing up about 40 employees of the respondent
its members of the Union, and about 6 months before his discharge
was elected shop chairman. At the same time lie maintained his ment-
bership in the Association, which he joined at about the time he was
first. employed by the respondent. He was active in the Association,,
and was elected to the grievance board in 1935 and, in spite of his
well-known activities on behalf of the Union, in 1937. He appears,
however, to have been a source of annoyance to the officials of the
Association because of his opposition to their policies, and in about
July 1937 Hochberg,'° the president of the Association, attempted to
induce the grievance board to expel Gartner from the board. Hoch-
berg called the grievance board together in a special meeting which
was held in the respondent's plant during working hours and pro-
posed Gartner's expulsion, suggesting an open ballot. Gartner de-
feated this move by demanding and obtaining a secret ballot, which
resulted in a vote against his expulsion. In the latter part of July,
shortly before his discharge, Gartner initiated a petition for a special
meeting of the Association for the impeachment of Hochberg for
failure to carry out his duties, a move which aroused great interest
among the employees. On August 2, 1937, only 4 days before his
discharge, Gartner testified on behalf of the Board in the earlier
proceeding against the respondent..
The respondent knew of Gartner's various activities on behalf of the
Union and in the Association and several officials attempted to dis-
courage them. In about June .1937 Simon Blechman, the president
and chief stockholder of the respondent, warned Gartner to have noth-
ing to do with the Union," at the same time promising him an increase
in pay. In July 1937 Gartner was again advised to have nothing to do
with the Union, this time by Simon Blechman and Lesser Segerman,'
the respondent's vice president. They asked him what the Union,,
could do for the employees, pointing out that the Association was
trying its best for them. In June or July 1937 Hochberg, who was
the respondent's office manager and assistant credit manager, as' well
as president of the Association, tried during working hours to persuade
Gartner to cooperate with him in ridding the respondent of the Uliion.-
The respondent denied that Hochberg had authority to hire or dis-
10 Hochberg was the respondent 's --office manager and, assistant . credit manager. His
authority as a representative of`the'respondent is discussed' below.
11 Blechman used the term "outside element ," but it is clear he was referring to the
Union.
S. BLECHMAN &' SONS, -INC. 501
charge employees. It is clear, however, that he made recommendations
as to the office employees in this respect and that they worked under
his supervision. In June or July Hochberg and Slonim, the respond-
ent's treasurer, reproached Gartner for meeting "with the outside
union every lunch hour." When Gartner denied that he did so, Slonim
said he did not believe Gartner, but added, "I hope it's not so," and
shook hands with him, saying, "Hope everything will be all right."
The foregoing facts concerning the respondent's attempts to discourage
Gartner's activities are not contradicted in the record.
On about June 1, 1937, the respondent began to assign Gartner its
cheaper trade, although previously, being in the "first group," he had
always been assigned the better class of trade. He was also subjected
to various indignities, such as being placed in the errand boys' box,
and being sent to work in the shipping department. Gartner com-
plained to Segerman, the respondent's vice president, and for a while
this course of conduct stopped, but it began again after Gartner testi-
fied on August 2, .1937, in the earlier proceeding instituted by the
Board against the respondent. During the last few days of his employ-
ment it became obvious to Gartner that something was going to happen
to him with respect to his job. He saw his time card repeatedly taken
from the time-card rack into the office and then put back. On August
4, one Abe Reznick 12 said to Gartner in the presence of Hochberg :
"Hair will grow on this palm here before a union will get in here, and
you'll be out first." Reznick was the respondent's "general superin-
tendent," in the sense that he was in charge of maintenance, and had
been in the respondent's employ for 20 years. Reznick denied that
he had any supervisory authority. However, although he spent a
great deal of his time repairing the numerous hand truck's used in the
respondent's business and making minor repairs to its building, it
seems clear that Reznick was recognized by the employees as an indi-
vidual of authority. Gartner and Rosenthal testified that Reznick had
considerable supervisory authority and he himself admitted that he
corrected employees' work. He was not required to punch the time
clock, as the other employees were. Asher, the head of the respond-
We find that Reznick was supervisory emli`loyee and that his remark
testified as to Reznick : "Well, -he's not exactly above me ... when we're
short of help, he helps me out and sometimes when he's in the depart-
ment, I help him out." It is clear, however, that Asher recognized
Reznick's authority. His first reply when asked if Reznick was above
him was an unqualified "yes," and it was only on second thought that
he gave the answer quoted above. Furthermore, when he was re-
'ferrecl to Reznick in connection with the problem, considered below of
12 Also referred to in the record as Rasnick:
283031-41-vol. 20-33
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rosenthal's request for a leave of absence, he went to Reznick and said :
"Mr. Reznick, will you come downstairs with me because one of the
boys don't want to come tomorrow, and see what we can do about it."
We find that Reznick was a supervisory employee and that his remark
to Gartner above referred to was attributable to the respondent.18
On August 5, the day before Gartner's discharge, Slonim called
Gartner into his office and accused him of telephoning to a customer to
whom he had sold some goods that day and telling the customer that
unless he refused to receive the goods when they were delivered, a
picket line would appear in front of his store. Gartner denied
Slonim's accusation at the time and we find that it was untrue. Never-
theless, as punishment, Slonim made him sit near the telephone oper-
ators for several hours, and when he finally let Gartner go back to
the salesmen's station, he ordered him not to talk to the other sales-
men. Ordinarily the salesmen were permitted to converse freely while
awaiting customers.
Finally, on August 6, 1937, Slonim called Gartner into the office
and discharged him. Gartner testified that Slonim told him : ".. .
the things that I. have carried on in the ... few months . . . didn't
do any benefit to the firm and we have to leave you go." He further
testified that he then stated to Slonim : "In other words, you fire me
for union activities," and that Slonim replied, "Let's not go into it."
Slonim testified as to his statement to Gartner as follows:
I stated to Mr. Gartner that on several occasions we have in-
formed him that his duties during working hours are for the
benefit of the company only and not other activities and that
we have found that . . . although promised, he has not kept
up his promise and that he was assigned to a customer and in-
stead of attending to the customer he left the customer and went
into the departments and went around disturbing other em-
ployees with different activities other than for the benefit of
the firm.
That same day the respondent sent a registered letter to the Regional
Director stating that Gartner had. been discharged because he was
inattentive to his duties and disturbed other employees in their work,
in spite_ of prior warnings not to do so. The letter went on to invite
the Regional Director to visit the respondent and investigate the
matter.
13 Matter of American Manufacturing Company, et al. and Textile Workers Organizing
Committee, C. I. 0., 5 N. L. R. B. 443, 447, enf'd , N. L. R. B. v. American Manufacturing
Co., et al ., 106 F. (2d) 61 (C. C. A. 2) ; Matter of The Herrick Corp. and Internatiotiai
Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621; :enf'd,
International Association of Machinists , Tool and ;. Die:' Makers Lodge No. 35, affiliated with
the International Association of Machinists;=an.d Production Lodge No. 1200, Affi liated with
the International Association of Machinists V. N. L. R. B., 110 F. ( 2d) 29 (C. A. for D. C.).
S. BLECHMAN & SONS, INC. 503
At the hearing the principal reason advanced by the respondent
for Gartner's discharge was that he persisted in neglecting customers
assigned to him and disturbing other employees engaged at their
tasks. The respondent further claimed that .on several occasions he
was untruthful in dealings with its officials and that he was there-
fore an undesirable employee. The untruthfulness consisted in
Gartner's denying union activities about which the respondent's
officials questioned him, some of which were undoubtedly legitimate
and:none. of which appear to have been more extensive than activities
which the respondent permitted the Association to carry on during
working hours. He testified that the reason he denied the activities
was his fear of discharge-under the circumstances a most justifiable
fear . In any event, Slonim at the time of Gartner's discharge did.
not raise the issue of untruthfulness. The reason for the discharge,
entered by the respondent on his employment card was ". . . inatten-
tive to customers & disturbing other employees during working:
hours," and substantially the same reason was stated by the respond-.
ent in letters sent respectively to the Regional Director and the
Association on August 6. We are convinced that Gartner's untruth-
fulness had nothing whatever to do with the action taken by the
respondent but was only an afterthought. We think the record
makes it clear, moreover, that the other matters mentioned were not
the. actual reasons for Gartner's discharge and that the real reason
was his membership in and assistance to the Union and the other
activities he engaged. in.
It is necessary, in order to evaluate the respondent's contention
that Gartner was discharged for neglecting customers and disturbing
other employees, to have some acquaintance with the mode of opera-
tion of the respondent's business with respect, especially, to the sales-
men. The respondent occupied seven and one-half floors of the
building in which it was located, four of which were used for the
purposes of- selling. The salesmen were stationed near the main en-
trance of. the- building. As each customer came in his name was
registered, and he-'was-: assigned to a ,salesman who accompanied him
to all departments he desired to visit. Samples were on display in
each department and one or more departmental stock clerks were
stationed there who played an important role in the making of sales.
They answered customers' questions about the goods in their depart-
ments and sometimes the salesmen would stand aside for a consider-
able period of time while the customers and stock clerks conferred
together. Indeed, it was a. common and accepted practice for sales-
men to leave their customers entirely for a while. Thus, with the
knowledge and consent . of the respondent, they, often attended to
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more than one customer at a time.14 Also, while with tlie^:custoiners
they were frequently called to the office, located on the ground floor,
or to see Green, the head of salesmen. Slonim testified that he fre-
quently saw customers in the respondent's place of business unac-
companied by their salesmen, and that on many of these occasions he
asked the customers if they were being waited on. He made no
claim that when this occurred he thought a salesman had failed
properly to. carry out his duties. The stock clerks, in the absence of
the salesmen, would continue to carry on business with the customers,
and would even fetch goods for them from the stockroom.
Slonim testified that he "frequently" saw Gartner disturbing other
employees and that employees had told him Gartner disturbed them.
The alleged disturbance apparently consisted in Gartner's speaking
to the employees during working hours, but no showing was made
that any employee's work was interfered with materially. Further-
more, with the exception of Moe Weingast, whose case is discussed
below, Slonim could not recall the name of a single employee who
had been thus "disturbed" by Gartner or who had complained to
him, nor did he claim he had ever reproved Gartner on these
occasions.
The incident involving Moe Weingast also involved Gartner's
alleged neglect of customers. For proof of this incident the re-
spondent relied chiefly upon the testimony of one David Levine, a
stock clerk. Levine testified as follows : On the morning of August
5, 1937, Gartner came to his department with a customer. 'After
showing the customer some samples, Gartner went to a neighboring
department, where he spoke to Moe Weingast, showing him a paper
which Levine later discovered was the petition for the meeting to
impeach Hochberg. The customer then asked for Gartner, who by
that time had disappeared, and Levine had Gartner paged. This
proved unsuccessful, and when, a little later, the customer repeated
his request, Levine reported the matter to the person in charge of
salesmen. In a minute or two Slonim appeared and asked Levine
where the salesman for that customer was, to which Levine replied
that the salesman was Gartner, who had approached and spoken to
Weingast and showed him a paper. Slonim then spoke to the cus-
tomer. In the afternoon Levine was called to the office, where he
repeated his story to Slonim, and later in - the day he was called in
again and signed a typewritten statement, in form an affidavit, but
not sworn to, setting forth some of the foregoing happenings.
14 Slonim testified that when salesmen waited on more than one customer, they were
acting contrary to instructions . However , since customers could not get into the selling
departments without the permission of Green, who assigned customers to their respective
salesmen , it seems certain that the respondent did not forbid the practice.
. . S. - BLECIDdAN. & SONS, INC. 505
Levine was confused as to the details of his story and changed his
testimony in a number of material respects. Thus, testifying as to
when the customer asked for Gartner, he said it was after "a few
minutes," after "a few seconds," after "maybe a minute," and "I mean
the minute as soon as Teddy Gartner left him, the customer was left
standing flat all alone there. He turned around, asked `Where is.
Mr. Gartner?"' As to the length of Gartner's conversation with
Weingast, Levine testified that it took "A few minutes," that "It
took a minute; maybe half a minute," and "I don't know." Also, he
first testified of only one visit to the office that afternoon, but after
discrepancies in,his testimony were pointed out, he recalled the second
visit. Similarly, he first told of two employees-Weingast and an-
other-that Gartner spoke to and put his arm round, but on further
questioning was not sure as to the second. His statement that
Slonim, on coming into the department, asked where the salesman
was for that. customer was in effect contradicted by Slonim. Slonim
testified that he did speak to a customer, but that he did not know
whether or not it was the one Gartner had left, and when asked how
he calve to speak to the customer, he replied that he spoke to any
customer when he saw him standing round, "to find out about it."
Gartner, though claiming the incident happened-1 or 2 weeks before
his discharge,' admitted that he asked Weingast to sign the petition
during working hours. We are convinced, however, that Gartner's;
utilizing working hours to engage in non-business activity was not the
reason. for his discharge. So far as appears in the record, no one
besides Gartner was ever discharged for carrying on organizational
activities during working hours, and Slonim admitted that the
amount of such activity engaged in on company time was very
large. He said :
... when there's competition in the place between two fac-
tions, not only one is responsible because they all do it and you
had to watch every one of them.
Q. Were others creating disturbances there also?
A. There were others, yes, there were.
Q. Others who were active in the employees' association?
A. Yes .. .
He also stated : "Well, if I had to-to discharge, I think we'd have
to discharge every man in our place . . ." Slonim admitted that
Al Rich and Hochberg, both supervisory employees 1' as well as
"everyone in the place" participated in electioneering. He said
15 As stated above , lie testified that on August b he was called to the office and accused
by Slonim of telephoning to a customer and demanding that he refuse to receive goods
Gartner had sold him . This testimony was not denied.
"Rich was head of the order fillers . FIochberg 's authority has already been discussed.
506 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
". . . there was an awful disturbance in the place at that time." It
is obvious that he was referring to electioneering and disturbances
during working hours. In addition , Slonim admitted that in the
latter , part of June 1937 Hochberg was apprehended -during working
hours soliciting signatures for a petition relating to the Associ tion-
and dictating a letter not pertaining to business .-• Gartner - testified
that he had often distributed such things as agenda and notices of
meeting for the Association on company time without being called
to account for it, and the respondent admitted that the Association
was permitted to collect dues and that its grievance committee, num-
bering 27 persons, was permitted to meet during working hours.
Levine and Rosenthal gave additional testimony as to activities on
behalf of the Association carried on on company time . Slonim con-
tended that , except for the use of company time for collecting As-
sociation dues and for meetings of its grievance board, the respondent
-endeavored to stop the practices mentioned above. . In explanation
of the fact that no one besides Gartner was ever discharged for
organizational activity on company time Slonim testified that when
he admonished the employees against the practices , all except Gartner
obeyed . This explanation, however, cannot be reconciled with the
proof -of the extensiveness of the organizational activities on company
time. Moreover, the record shows that Hochberg , a supervisory em-
ployee, persistently engaged in outside activities during working
.hours with impunity , in spite of any admonitions Slonim may have
given.
At the hearing the respondent laid considerable emphasis upon the
alleged fact that the customer had been neglected by Gartner and
caused to complain to Levine. But the record shows that the abandon-
ment of a customer on that occasion or on any other occasion was not
the true cause of Gartner 's discharge. The typewritten statement
signed by Levine, supposedly after two interviews with Slonim about
it, originally mentioned nothing about the customer , the words "While
waiting on a customer " having been inserted by hand . Moreover, con-
sidering the allegedly direct bearing of the incident upon the dis-
charge, a strange confusion existed in the minds of Levine and Slonim
as to the date of the incident. Levine first testified that he thought it
happened , as Gartner had testified , "about a week or two" before
Gartner's discharge, and he had to be led by the respondent 's counsel
to state finally that it happened on August 5. Furthermore, the
numerous contradictions in his testimony , some of which have been
referred to above, throw doubt upon his entire testimony . Slonim,
though aware that Gartner was discharged on August 6, testified that
the Weingast incident occurred "Some time in August , I believe, the
end of July or August. I don 't remember just when it was." More-
S. BLECHMAN & SONS, INC. 507
over, Slonim scarcely mentioned Gartner' s neglect of a customer in his
testimony as to the Weingast incident, merely stating that Levine on
about August 4, 5, or 6-the witness could not say exactly when-
reported that Gartner had left a customer unattended in his de-
partment 17
Slonim also complained that he had reproved Gartner on several
prior occasions, between April and July 1937, for leaving his cus-
tomers. Gartner testified on direct examination that no complaints
were ever made concerning his work but he did not take the stand
to deny these occurrences specifically or to deny that he abandoned
his customer in Levine's department. The testimony in the case shows
that leaving a customer, even when not authorized, was not considered
a breach of discipline serious enough to warrant discharging an em-
ployee. Slonim was unable to recall a single .case besides Gartner's
of an employee being discharged for that reason."' Yet he admitted
that Green, the head of salesmen, complained of salesmen other than
Gartner abandoning customers assigned to them. Slonim would not
give even the roughest approximation of how many salesmen Green
had complained about 19 and Green, who was probably the only person
in a position to know the extent to which the various salesmen engaged
in the practice, was not called to testify.
The record thus shows that Gartner was no more guilty of the
infractions alleged as the cause of his discharge than other employees
of the respondent. On the other hand he was the principal promoter
of the Union and a serious threat to the officials of the Association,
the organization which the respondent preferred. His temporary
demotion in June was undoubtedly intended as a warning to him of
the possible consequences' of his organizational activities. His testi-
mony at the earlier hearing and, especially, his bold move to impeach
Hochberg as president of the Association finally convinced the re-
spondent's officials that Gartner was incorrigible, and they decided
upon his discharge. There is no doubt in our minds that the respond-
ent considered Gartner a capable and efficient employee and that it
would have been tolerant of his lapse in abandoning his customer and
17 Slonim's testimony was that he learned of the petition and Gartner ' s connection with
it from several employees whom he questioned as to the cause of the general excitement
which he observed in the place of business of the respondent . He said nothing about
being informed of the petition by Levine.
18 He testified that the employment card of an employee discharged in 1933 stated as
the reason for his discharge , "didn't treat a customer properly ," that the card of an
employee discharged in 1931 stated as the reason for his discharge , "Told the customer
that goods not in stock without referring to it," and that the card of an employee dis-
charged in 1927 stated as the reason for his discharge , "refused to do his duty and was
found fooling around during the busiest time, the time of the busy season." He did not
know exactly what the first statement meant and he had no further recollection as to
any of the cases.
19 Slonim 's testimony was as follows :
Q. Was it two or three , or fifteen or twenty [ salesmen]?
A. . . . I can't say.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approaching Weingast during working hours if it not been for his
actions with respect, to the Union and the Association. We are satis-
fied that Gartner was discharged solely because he,joined and assisted
the Union and engaged in other concerted activities for the purposes
of collective bargaining' and other mutual aid and protection. The
respondent in effect thereby urged, persuaded, and warned its em-
ployees to refrain from becoming or remaining members of the Union
k and threatened them with discharge and other reprisals if they did so.
We find that the respondent, by discharging Gartner, discriminated
in regard to his hire and tenure of employment, thereby discouraging
membership in a labor organization, and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
We also find that by, Reznick's remark to Gartner on August 4, 1937,
quoted above, the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.20
After his discharge, Gartner was unemployed until September 29,
1937, when he obtained a position as an outside salesman with a firm
in the same business as the respondent. His starting salary was
$23.00 per week, but at the time of the hearing he was earning com-
mission which brought his weekly earnings to an average of approxi-
mately $32.00 per week, the amount he earned with the respondent at
the time of his discharge. For. the approximately 58 weeks between
his discharge 'and the opening. of the hearing Gartner, if he had not
been discharged and if he had been paid at the rate of his average
earnings at the time of his discharge, would have received from the
respondent about $1,856.00. He estimated his actual earnings during
that period at $1,400.00. He testified that he desired reinstatement.
Sidney Rosenthal. Sidney Rosenthal, a stock clerk in the reserve-
stock department, was hired by the respondent on February 23, 1937,
and was discharged on August 6, 1937, effective as of August 5. The
work of the reserve-stock clerks was unskilled, and Rosenthal was
unquestionably a competent and efficient employee. The reason for
his discharge advanced by the respondent at the hearing was an al-
leged act of insubordination, consisting of his being absent on August
6 without permission and contrary to specific instructions.
Though not so prominent in organizational affairs as Gartner,
Rosenthal made his influence felt, both by opposition to the Asso-
ciation and by aid to the Union. On about April 13, 1937, he refused
to sign a petition being circulated among the employees authorizing
the Association to represent them in collective bargaining with the
20 We make no findings of unfair labor practices with respect to the occurrences set
forth above which took place prior to July 26, 1937, because the complaint was limited
in its scope to events which occurred on and after that date.
S. BLECHMAN & SONS, INC. 509
respondent. Shortly after April 27, 1937, on which day a consent
election was conducted by the Board among the respondent's em-
ployees, Rosenthal, along with approximately 15 or 20 other em-
ployees, was called to the respondent's office and was requested to.
sign an affidavit stating that.Slonim had given the employees proper
instructions prior to the election. In spite of the presence of Hoch-
berg, Reznick, and officers of the firm on that occasion, Rosenthal
refused to sign the affidavit. In about May or June 1937 Rosenthal
joined the Union 21 and thereafter he regularly attended meetings
of the members employed by the respondent. He spoke to approxi-
mately 20 employees in an effort to persuade them to become members
of the Union, and he was instrumental in having a number of them
join. In June 1937 Asher, Rosenthal's immediate superior, told
Rosenthal that he had heard complaints of Rosenthal's soliciting
union members during working hours. Rosenthal denied to Asher.
that he had done so during working hours, and Asher informed him
that he was not concerned with his union activities, but that they
were to be carried on outside of working hours. In that same month,
during various lunch hours, William Koenigsberg, the buyer in the
notions department and a supervisory employee, ordered employees
from his department to get away from Rosenthal. This occurred
after Rosenthal began to solicit members among those employees.
At the end of July 1937 Nathan Blechman told Rosenthal he had
received word that Rosenthal had attempted, to get a pledge card
signed "in the building," and asked Rosenthal if he had any such
cards in his pocket. Rosenthal replied that he had signed up one
of the employees, but had done so before work. Nathan Blechman
then remarked that "as long as it was before nine o'clock it was 0. K."
- Rosenthal was absent from work on August 6, and late that after-
noon the respondent sent him a letter of dismissal which read in
part as follows :
Since you have taken leave of absence without permission and
contrary to instructions, we regret that we are compelled to
dispense with your services.
That same day the respondent also sent a letter to the Regional
Director informing her that Rosenthal and two other employees had
been discharged.22 This letter stated, in part :
The reasons for our action, are due to the fact that they have
taken leave of absence without permission, which is contrary to
instructions, as is generally known, according to the notice given
n The Union was then known as wholesale Dry Goods Employees Union, Local No.
19932, American Federation of Labor.
22 The two other employees were Sol Yoffle and Eugene Gruber. Gruber was later taken
back when he explained his absence satisfactorily to the respondent. These discharges
are not in issue in this case.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to all employees that none are to take any time off unless they
so •report to our Mr . Nathan S . Blechman in advance, and per-
mission given by him . . .
Rosenthal received his dismissal letter on Saturday , August 7, which
was not a workday. On Monday morning he went to the respond-
ent's place of business and demanded the reason for the letter from
Slonim, who answered that Rosenthal had been absent without per-
mission . Rosenthal replied that he had received permission from
Asher, and, according to Slonim 's testimony , from Reznick also.
Slonim then stated that he had been informed by Reznick to the
contrary , and he said that he would speak to Reznick. Later that
morning he informed Rosenthal that Reznick insisted Rosenthal had
not received leave of absence. Twice Rosenthal, asked Sloninf to
allow him to confront Reznick , but Slonim refused . Slonim did not
inform Rosenthal that Asher also allegedly denied having given
Rosenthal leave of absence.
The testimony is sharply conflicting as to whether or not Rosenthal
was given leave of absence . :Rosenthal testified that on the afternoon
of Thursday , August 5, Asher granted his request for permission to
take the following day off, and that later in the day Reznick remarked
to him that he understood Rosenthal would not be there the next day,
to which Rosenthal . replied , "That is correct." Reznick testified that
on Thursday , after being informed by Asher that Rosenthal wanted
Friday off , he told Rosenthal he was unable to help out, but that
Rosenthal told him and Asher that whether or not Reznick could
take his place, he would not come in the next day. Asher denied that
he gave Rosenthal permission to stay away. He testified that on Thurs-
day afternoon Rosenthal informed him he had an important engage-
ment and would not be in the next day, to which Asher objected, stat-
ing that the respondent was very busy, and short -handed to boot;
that when Rosenthal insisted that he had to go away and therefore
would not come in , Asher said he would see what he could do; but
that after he had consulted Nathan Blechman , Slonim, and Reznick, he,
as well as Reznick , informed Rosenthal that he could not have the
next day off.
Asher, Reznick , and Slonim attempted to corroborate the fore-
going evidence by testimony as to various conversations which alleg-
edly took place on August 5 with respect to Rosenthal 's request. This
testimony failed to accomplish its purpose because of the numerous
inconsistencies it contained . For example , Slonim contradicted Asher's
testimony that on August 5 Asher, informed him and Nathan Blech-
man that Rosenthal had simply announced he would not come in the
next day. Also, Asher testified that Rosenthal told Reznick and him
that he would "not come in because he has an important engagement
S. BLECHMAN & SONS, INC. 511
for Friday," whereas Reznick testified that Rosenthal told him noth-
ing about having an important engagement.. In a further attempt
to corroborate Asher's denial that he gave Rosenthal leave of absence,
the respondent tried to prove that Asher had no authority to do so,
and that general instructions had been issued requiring employees to
apply to the office "for such leave, even, for a single day. Asher, Rez-
nick, Slonim, and Nathan Blechman gave testimony to this effect. In
this connection the respondent laid considerable emphasis upon the
posting of certain notices instructing the employees to make arrange-
ments with the office for taking time off, but the record shows that those
notices referred only to vacations and not to cases .like Rosenthal IS.23
Furthermore, Asher's. uncontradicted testimony shows that his sub-
-ordin'ates'habitually.dealt with.him'and not with the office in arranging
for such occasional absences, and that Nathan Blechman relied almost
entirely upon Asher's judgment as to whether or not permission should
be granted in each particular case. We cannot, therefore, credit the
testimony that the respondent had issued general instructions of the
kind claimed, and we find that Asher had authority to grant leave of
absence to his subordinates, including Rosenthal. Finally, the re-
spondent attempted to show, through Reznick and Asher, that Rosen-
thal could not be spared on August 6 and that because of his absence
his work had to remain undone. In view of Reznick's statement that
if Rosenthal had told him he had an important engagement, he would
have considered taking his place and might have done so, we do not
believe his testimony that when Rosenthal did not report on Friday,
he"wa^unable•to take his place because he was busy doing repair work.
Asher's testimony that because of the shortage of clerks Rosenthal's
work could not be done until the following Monday, when two clerks
returned from their vacations, did not find support in the respond-
ent's records, which showed that no clerks had returned to work at
that time. Asher, indeed, was an especially untrustworthy witness.
He testified that Reznick had no title but Reznick's testimony estab-
lished that he had the title "general superintendent." He testified
at first that after consulting the office on August 5 he did not tell
Rosenthal that he could not have the next day off, but immediately
thereafter hee stated that he did. He testified that in June he had a
conversation with Rosenthal about the Union but later stated that
this testimony was not correct. He made a similar admission concern-
ing his statement that no employees in his department took vacations
later than the middle of July.
23 Although • the respondent 's witnesses claimed that the alleged rule as to obtaining
leave of absence had existed for many years , the notices had never been posted until
1937 , when the respondent first instituted paid vacations among its employees . Moreover,
the notices were kept posted only for the period of about 8 or 9 weeks just prior to the
vacation season.
512 DECISIONS OF NATIONAL' LABOt RELATIONS BOARD
The foregoing considerations impel us to the conchision'that Asher
and Reznick are not to be believed, aiid 'that Rosenthal was in fact
granted a leave of absence by Asher. Other considerations lead to the
same conclusion'. In the letters which the respondent sent on Au''-`
gust 6 to the Regional Director and to Rosenthal the respondent based,
Rosenthal's discharge Upon his alleged disobedience of non'-existent
general instructions with regard to leave of absence, and not upon his
disobedience of specific orders:: 4 Furthermore, Slonim's refusal to
permit Rosenthal to confront Reznick on 'August 9 is indicative of
the validity of Rosenthal's contention. If Slonim's motive in dis-
charging Rosenthal had been the maintenance of proper discipline, as
he in effect claimed, he. would, we think, have granted Rosenthal's
request. Taking all these matters into consideration, together with
the respondent's hostility to the Union, and the discriminatory dis-
charge of *Gartner on the following day because of union activities,
we conclude that Rosenthal had permission to be absent on August 6
and that the respondent discharged him because he joined and assisted
the Union and engaged in other concerted activities for the purposes
of collective bargaining and other mutual aid or protection:
We find that the respondent, by discharging Rosenthal, discrinii-,
rated in regard to his hire and tenure of employment, thereby dis-
couraging membership in a labor organization, and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Rosenthal was unemployed at the time of the hearing. He had
previously had temporary work at which he earned a total of approxi-
mately $473.60. If he had not been discharged, and if he had been
paid at the rate of his earnings at the time of his discharge, he would
have earned up to the opening of the hearing about $784. He testified
that he desired reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, B, above, occurring in connection with the operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
u We are led to conclude that the respondent in its letter to Rosenthal was referring to
his disobedience of general instructions rather than his disregard of a specific order since
identical letters were sent to Yoffie and Gruber who, the respondent claimed, had dis-
obeyed the alleged general instructions and not a specific order. Moreover, on the same
day the respondent advised the Regional Director that all three individuals had been
discharged for absence contrary to instructions which could only have meant general
instructions.
S. BLECHMAN & SONS,, _INC. 513
THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies of
the Act and to restore, as nearly as possible, the situation that existed
prior to the commission of the unfair labor practices.
We have found that Tobias Gartner and Sidney Rosenthal were.
discriminatorily discharged. We shall, accordingly, order the re-
spondent to offer them reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other-
rights and privileges, and to make them whole for any loss of pay
they have suffered by reason of their respective discharges by pay-
ment to each of them of a sum equal to the amount which he normally
would have earned as wages, commissions, or other forms of pay-
ment from the date of his discharge to the date of the. offer of rein-
statement , less his net earnings 25 during said period.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Wholesale Employees of New York, Local 65, United
Retail-Employees of America, now known as United Wholesale and
.Warehouse Employees' Union, Local 65, United Retail Employees of
America, is a labor organization within the meaning of Section 2
.(5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Tobias Gartner and Sidney Rosenthal, thereby discouraging
membership in the Union, the respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (3)
of the- Act.
3. By interfering with, restraining, and coercing its employees in
.the exercise of the rights guaranteed in Section. 7 of the Act,, the
respondent has engaged .in, and' is engaging in unfair labor. practices
.,-within the meaning of Section 8 (1) of the Act.
a5 By '.`net earnings" is meant earnings less expenses , such as for transportation , room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill TVorkers, Local 2590, 8 N. L. R . B. 440 . Monies received
for work performed upon Federal , State, county, municipal , or other work -relief projects
are not considered as earnings , but, as ' provided below in the Order , shall be deducted
from the sum due the employee , and the amount thereof shall be paid over to the appro-
priate :: fiscal ,:.agency of the rode,al State county municipal or other -gocernment•-or
goveriluients :which supplied ` the funds for said work -relief projects._
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices
.affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section'10 (c) of the National Labor Relations
Act, S. Blechman & Sons, Inc., New York City, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Wholesale and Ware-
house Employees' Union, Local 65, United Retail Employees of
America, or any other labor organization of its employees,; by dis-
criminating in regard to the hire or tenure of employment or any
term or condition of employment of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in their right to self-organization, to form, join, and
assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer Tobias Gartner and Sidney Rosenthal immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges;
(b) Make Tobias Gartner and Sidney Rosenthal whole for any
loss of pay they have suffered by reason of the -mspondent's discrimi-
nation in regard to their, hire arid tenure of employment; -by payment
to each of them of a sum of money equal to that which he would
normally have earned as wages, commissions, or other form of pay-
ment during the period from the date of such discrimination against
him to the date of the offer of reinstatement, less his net earnings
during such period, deducting, however, from the amount otherwise
due to each of the said employees, monies received by said employee
during said period for work performed upon Federal,- State, county,
. municipal, or other work-relief projects, and pay over the amount
so deducted to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which sup-
plied the funds for said work-relief projects;
(c) Immediately post, and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, in conspicuous
places throughout its place of business, notices to its employees stat-
S. BLECHMAN & SONS, INC. 515
ing (1) that the respondent will cease and desist in the manner set
forth in 1 (a) and (b), and will take the affirmative action set forth
in 2 (a) and (b), of this Order; and (2) that the respondent's em-
ployees are. free to become and remain members of United Wholesale
and Warehouse Employees' Union, Local 65, United Retail Em-
ployees of America, and that the respondent will not discriminate
against any employee because of membership in or activity on behalf
of that organization;
(d) Notify the Regional Director for the Second Region in writing
within fifteen (15) days from the date of this Order what steps the
respondent has taken to comply therewith.