The American White Cross Laboratories, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1946

66 N.L.R.B. 866 (N.L.R.B. 1946)

In the Matter of THE AMERICAN WHITE CROSS LABORATORIES, INC.'
and ANGELINA DE MELIA2
In the Matter of THE AMERICAN WHITE CROSS LABORATORIES, INC. and
UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF
AMERICA, CIO
Cases Nos. 2-C-5764 and 2-C-5870, respectively.-
Decided March 18, 1946
DECISION
AND
ORDER
On January 18, 1946, the Trial Examiner issued his Intermediate
Report in the above-entitled proceedings, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. No exceptions to the Intermediate Report, briefs,
or request for oral argument before the Board in Washington, D. C.,
were thereafter filed with the Board. The Board has reviewed the
rulings made by the Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report and the entire
record in the case. As previously noted, the respondent has filed no
exceptions to the Intermediate Report. The Board, accordingly,
adopts the findilligs, conclusions, and recommendations of the Trial
Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, American White Cross Lab-
oratories, Inc.,, New Rochelle, New York, and its officers, agents, suc-
cessors, and assigns, shall :
1 At the hearing the complaint was amended to provide for the correct corporate title
as above.
2 At the hearing the complaint was amended to provide for the correct name of the
individual as above.
66 N. L . R. B., No. 107.
866
THE AMERICAN WHITE CROSS LABORATORIES, INC. 867
1. Cease and desist from : -
(a) Discouraging membership in any labor organization of its
employees, by discharging or refusing to reinstate any of its employ-
ees, or in any other manner discriminating in regard to their tenure
of employment or any term or condition of employment for engaging
in activities directed to the designation of a new bargaining repre-
sentative to succeed an existing bargaining representative at the end
of the latter's contract term;
(b) Discharging, refusing to reinstate, or otherwise discriminating
against an employee because he has given testimony under the Act;
(c) Any other acts in any manner interfering with the efforts of
its employees to designate a new bargaining representative to succeed
an existing bargaining representative upon the termination of the
latter's contract.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Angelina De Melia, immediate and full reinstatement
to her former or substantially equivalent position without prejudice
to her seniority and other rights and privileges;
(b) Make whole Angelina De Melia for any loss of pay she may
have suffered by reason of the respondent's discrimination against her,
by payment to her of a sum of money equal to that which she normally
would have earned as wages from the date of the respondent's dis-
crimination against her to the date of the respondent's offer of re-
instatement, less her net earnings during such period;
(c) Post at its plant at New Rochelle, New York, copies of the
notice attached to the Intermediate Report herein, marked "Appendix
A." 3 Copies of said notice to be furnished by the Regional Director
for the Second Region, shall after being duly signed by the respond-
ent's representative, be posted by the respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced,
or covered by any other material ;
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
Said notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER" and
substituting in lieu thereof the words "A DECISION AND ORDER."
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Jerome I. Macht, for the Board.
Mr. Isidor Tow, of New Rochelle, N. Y., for the Respondent.
lfr. Harry Rosenzweig, of New York City, for the CIO.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Angelina De Melia, herein called
De Melia, and an amended charge duly filed by United Retail, Wholesale and
Department Store Employees of America, CIO, herein called the C. I. 0., the
National Labor Relations Board, herein called the Board, by the Regional
Director for the Second Region (New York, New York), issued its complaint'
dated September 28, 1945, against the American White Cross Laboratories,
Inc., herein called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint and notice of hearing thereon were duly served upon the respond-
ents, De Melia, the CIO, and Federal Labor Union, Local 22806, affiliated with
the American Federation of Labor, and Cosmetic, Soap and Perfumery Workers
Union Local 20646, affiliated with the American Federation of Labor.'
With respect to the unfair labor practices the complaint alleged in substance
that the respondent on or about January 20, 1945, discharged Angelina De Melia
and thereafter refused and failed to reinstate her because she joined or assisted
the C. I. O. and because she had given testimony under the Act, and that the
respondent by such conduct engaged in unfair labor practices within the mean-
ing of Section 8 (1), (3), and (4) of the Act.
The respondent thereafter filed its answer wherein it denied that it engaged
in any unfair labor practices and affirmatively alleged that De Melia was
discharged pursuant to the terms and conditions of its closed-shop contract
with the A. F. of L., since she had been expelled from Federal Labor Union,
Local 22806, affiliated with the American Federation of Labor, and was no
longer a member in good standing at the time of her discharge.
Pursuant to notice, a hearing was held on October 22, 23, and 24, 1945, at
New York City before Sidney Lindner, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner . The Board and the respondent were
represented by counsel and the CIO by a lay representative . Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. At the close of the Board's
case a motion made by counsel for the Board to conform the pleadings to the
proof as to dates and minor variations was granted without objection. At the
close of the hearing the undersigned reserved ruling on the motion of the
respondent's counsel to dismiss the complaint . The motion is hereby denied.
At the close of the hearing, counsel for the Board and the respondent argued
orally before the undersigned. Although all parties were given an opportunity
to file briefs, no briefs have been filed with the undersigned.
Upon the record thus made and from his observation of the witnesses, the
undersigned makes the following :
2 On September 27, 1945, the Board ordered that the cases arising from the charge'
' filed herein by De Melia and the C. I. O. be consolidated.
9 Neither the Federal Labor Union, nor Cosmetic, Soap and Perfumery Workers Union
appeared at the hearing.
THE AMERICAN WHITE CROSS LABORATORIES, INC. 869
FINDINGS or FACT
1. THE BUSINESS OF THE RESPONDENT
The American White Cross Laboratories, Inc., is a corporation duly or-
ganized under and existing by virtue of the laws of the State of New York,
having its principal office and place of business at New Rochelle, New York,
where it is engaged in the manufacture, sale, and distribution of surgical
dressings and related products. During the calendar year of 1944, the respond-
ent in the conduct of its business operations at its plant in New Rochelle, New
York, purchased raw materials consisting principally of cotton cloth and rubber
valued in excess of $1,000,000, of which approximately 25 percent was shipped
to its plant at New Rochelle from points outside the State of New York. Dur-
ing the same calendar year, the respondent manufactured finished products
having the value in excess of $1,000,000, of which approximately 75 percent was
sold and shipped to points outside the State of New York. The respondent
admitted at the hearing that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATIONS INVOLVED
United Retail , Wholesale , and Department Store Employees of America,
CIO, affiliated with the Congress of Industrial Organizations , Federal Labor
Union, Local 22806, and Cosmetic , Soap and Perfumery Workers Union, Local
20646, both affiliated with the American Federation of Labor, are labor or-
ganizations admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
1. Introduction
There is no substantial dispute as to the facts in this case , but there is
sharp conflict as to the conclusions to be drawn from them . The sole issue
involved is the legality of the respondent 's action at a time when a question of
representation was pending, in discharging at the request of the A . F. of L.,
and purportedly pursuant to the provisions of its closed-shop contract with
the A. F. of L., Angelina De Melia, an employee who had engaged in activities
in behalf of the C. I. O.
2. The 1944 and 1945 contracts with the A. F. of L.
The respondent and the A. F. of L. have enjoyed contractual relations since
1942. Their contract for the year 1944, although signed on October 12, 1944,
was retroactive to January 1, 1944, and was for a term ending December 31,
1944. The 1944 contract included a clause for the check-off of union dues by the
respondent and among other things provided as follows:
Article 1 C : The Employer will employ solely and exclusively members
in good standing of said Union and no others.
a s s s s * t
Article 4: That upon request of the Union, the Employer will promptly
discharge any employee who might be declared by the Union not to be a
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member in good standing or to be under charges for violation of any of the
rules of the said Union or any of his or her obligations, thereto.
Isidor Tow, treasurer of the respondent, and its attorney, testified that at
the time he signed the 1944 contract, Jacques Buitenkant, attorney for the
A. F. of L. said to him, "What about a contract for next year?" Tow replied,
"All right. Any time you prepare and submit to us an agreement Identical with
the one just signed, I will recommend that it be signed, or I will sign it
myself."
Thereafter on November 22, 1944, Tow, on behalf of the respondent, signed
a contract with the A. F. of L. for the year 1945. The new contract included
the clauses quoted above; in addition It provided that the contract " shall re-
main in full force and effect until December 31, 1945, and shall be automatically
renewed from year to year either In full or In part unless written notice is
given to each other and they desire to change all or part of this Agreement."
In other respects the 1945 contract was substantially the same as the 1944
contract.
3. De Melia's C. I. 0. activities; the representation petition of the C. I. 0. and
hearing held thereon; certification of the C. I. 0. as exclusive bargaining
representative
In November 1944, the C. I. 0. began organization of the employees at the
respondent's plant. De Melia who had been employed by the respondent since
1936, was active in the organizational efforts of the A. F. of L. In 1942 when
that union became the collective bargaining representative of the respondent's
employees. She became a member of the executive board of the A. F. of L.
in December 1942, when the respondent entered Into its first contract with the
A F. of L., and in August 1944, was elected its vice president.
In September 1944, Federal Labor Union Local 22806, affiliated with the
American Federation of Labor, referred to in this report as the A. F. of L.,
merged with Cosmetic, Soap & Perfumery Workers Union, Local 20646, affili-
ated with the American Federation of Labor' Shortly thereafter, and in or
about October 1944, at an Executive Board meeting of the A. F. of L., De Melia
asked Charlotte Mayer, financial secretary and treasurer of the A. F. of L.,
for a copy of the constitution and by-laws of the merged locals. Mayer said
they would be mailed to her, but according to De Melia she never received them.
About a week after this request, De Melia, who was also shop steward for the
A. F. of L. In the respondent's plant, had occasion to call the A. F. of L. office
to report a complaint. She talked with Mayer and again asked for a copy of
the constitution and by-laws. Mayer told her that she was not entitled to them.
When De Melia mentioned that as vice president of the A. F. of L., she was
entitled to a copy of the by-laws, Mayer told her that she was no longer a
vice president and that she could not have the by-laws because they would
conflict with the by-laws of Local 20646 with which they had merged.
De Melia testified that a day or 2 after her telephone conversation with
Mayer, she received a letter from Benjamin Pross, business manager of the
A. F. of L., to the effect that she (De Melia) was insubordinate and that if
she did not "behave", the A. F. of L. would replace her with a member in good
standing. De Melia showed the letter to most of the respondent's employees
and she was requested to form a committee to call on Collins, an official of the
a Despite the merger in September 1944, the respondent thereafter continued to receive
correspondence on the stationery of Federal Labor Union Local 22808, and the 1945
contract referred to, supra, which was signed on November 22, 1944, was between Federal
Labor Union, Local 22806, affiliated with the American Federation of Labor, and the
respondent.
THE AMERICAN WHITE CROSS LABORATORIES, INC. 871
American Federation of Labor. De Melia and the committee ' saw Collins,
who told them that De Melia was entitled to the by-laws and sent them back
to see Pross and Mayer. Pross, according to De Melia, greeted her with curse
words, said she could not have the by-laws, and told the committee they would
all be out of jobs the following day.
Upon reporting for work the following day, the time cards of the committee
members were not in the rack. Larry Castelia, foreman in the respondent's
plant, told the committee members that the A. F. of L. had called the plant
and left instructions that they were not to work there. Castelia then told the
committee members to wait in the plant until they heard from the A. F. of L.
Within a short time Castelia told them that the A. F. of L. had called, and
that they were to report to the A. F. of L. office that morning. There they
saw several officers and the A. F. of L. attorney, Buitenkant, and were told
that the respondent's general manager Irving Tow, had called and said he did
not want the committee members to work in the plant because they were off
the job the previous day without having given notice to the respondent.
De Melia said that was not so, and that the true fact was that Irving Tow
had apologized to the committee after he had checked the records and found
that they had notified the respondent that they would not be in the day before.
Nothing was done for the committee members and they returned to the plant
where they saw Irving Tow and told him that the A. F. of L. said that he did
not want them to work in the plant. In the presence of the committee, Irving
Tow called the A. F. of L. office, spoke to Mayer, and then asked De Melia to
talk with her. De Melia was told by Mayer that they could not work in the
plant, whereupon Irving Tow again spoke to Mayer and said that the plant
was engaged in war work and that the employees were needed. Despite
Irving Tow's plea the committee members were not permitted to return to work
and they left the plant.'
Shortly after her lay-off, De Melia posted herself outside of the plant to tell
the employees of a meeting to be held and asked them to attend. The meeting,
held at Murphy's hall in or about the last week of October or the first week of
November,' was attended by about 40 employees. De Melia told the meeting
what had happened to the committee at the A. F. of L. office, and a motion
was then made on the floor to drop the A. F. of L. and take up affiliation with
the C. I. O.
That same week, De Melia and the committee saw Harry Rosenzweig, busi-
ness manager of the C. I. 0., and told him that the respondent's employees were
not satisfied with the A. F. of L., and asked if they could be represented by a
C. I. O. union. When Rosenzweig was told that the A. F. of L. had a contract
which was to expire December 31, 1944, he instructed De Melia and the com-
mittee to call a meeting of the respondent's employees where they could obtain
signatures to C. I. O. membership applications, and then be in a position to
show that a majority of the respondent's employees wanted the C. I. O. to
represent them when the A. F. of L. contract expired.
Subsequently during the month of November 1944, the respondent's em-
ployees' held three meetings where they signed a petition expressing their
• The committee consisted of four of the respondent's employees.
• It was stipulated at the hearing that De Melia was suspended from work for the
period from October 23 to November 10, 1944, inclusive. According to the record, three
of the committee members were suspended for shorter periods and the fourth for the same
period as De Melia.
' De Melia was unable to state the exact date of the meeting, but remembered that it
was shortly after her suspension from employment.
• De Melia testified that about 40 employees attended the meetings.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intention to withdraw from the A. F. of L. at the expiration of the A. F. of L.
contract, and to join the C. I. 0., signed membership applications in the
C. I 0., and were addressed by a C. I. O. organizer. De Melia was chairlady at
all of these meetings, and active in signing up employees to C. I. O. membership.
As noted heretofore, De Melia was reinstated to her job with the respondent
on November 10, 1944. De Melia testified that about a week before her rein-
statement, at the request of Isidor Tow, she came in to see him in his office
on a Saturday morning. Isidor Tow told De Melia that A. F. of L. negotiations
for a new contract were coming up which he would hold up temporarily if
De Melia would try to get an independent union started and work with him,
but if she had any intention of going to the C. I. 0., he would sign up with the
A. F. of L. because he could "get along" with Mayer. De Melia told Isidor Tow
that she "was not for Mr. Tow", but "was for the employees."'
On or about December 1, 1944, the C. I. O. filed a representation petition
pursuant to Section 9 (c) of the Act' Isidor Tow admitted that he had a
conference in December 1944, with a Board Field Examiner concerning the
representation petition filed by the C. I. O.
At the Board hearing upon the petition filed by the C. I. O. on January 15,
1945, De Melia, who was present in behalf of the C. I. 0., was called as a wit-
ness by Buitenkant, attorney for the A. F. of L. During a recess of the hearing
Buitenkant, in the presence and hearing of Isidor Tow, Rosenzweig and Mayer,
said to De Melia, "Now, I will see you are not reinstated to your job." 1'
The Board, in its Decision and Direction of Election in the representation pro-
ceeding," found no merit in the respondent's and the A. F. of L.' s contention
that inasmuch as the contract of November 22, 1945, was signed prior to the
C. I. O.'s demand for recognition, it was a bar to the proceeding , and directed
an election by secret ballot among the respondent's employees . At the election
held on April 27, 1945, 55 votes were cast for the C. I. 0., 1 vote for the
A. F. of L., and 17 votes for neither. The C. I. O. was certified as the exclusive
bargaining agent in the unit defined in the Board's Corrected Certification of
Representatives issued May 5, 1945.
4. The A. F. of L.' s request for De Melia's discharge
Under date of January 16, 1945, De Melia received the following letter from
the A. F. of L.:
January 15, 1945.
Angie De Melia
141 Van Guilder Avenue
New Rochelle, New York
Dear Member :
You are hereby ordered to appear before the Executive Board , on Friday,
January 19th , 1945 , at 6:00 p . in. sharp, to answer charges filed against
you for:
1. That you have acted together.with others to disassociate yourself
from our Union , and that you have become a member of a Union other
than our own.
2. That you have made public statements contrary to the best inter-
est and welfare of the Union.
3. That you appeared before the National Labor Relations Board
in certain petitions against our Union.
s The findings In this paragraph are based upon the uncontradicted testimony of De
Melia, which the undersigned credits
' Case No. 2-R-5209.
10 Isidor Tow stipulated at the hearing that he was present when Buitenkant made the
statement.
u 60 N . L. R. B. 1148 , decided March 9, 1945.
THE AMERICAN WHITE CROSS LABORATORIES , INC. 873
You may , if you so desire , bring witnesses to testify In your behalf.
Fraternally yours,
COSMETIC SOAP & PERFUMERY WORIxERs UNION LOCAL 20646.
[s] CHARLOTTE MAYER,
Charlotte Mayer,
Union Representative.
On or about January 18 , 1945, Mayer, according to her undenied testimony,
which the undersigned credits, received a telephone call from Isidor Tow, 'who
told her that he valued De Melia's services to the respondent , that De Melia
was one of the very good workers and was dependable , and that unless the
charges against her were serious, he felt it might possibly be "shelved for
awhile" pending the outcome of De Melia 's "trial". Mayer then told Isidor
Tow that the matter was considered very serious, advised him of the nature
of the complaint against De Melia , and read to him the charges set forth in the
letter quoted above so that he could have a better understanding of the matter
and implied that the A. F. of L. was going to request the respondent to lay
off De Melia . Mayer testified further that she told Isidor Tow in this telephone
conversation that the A . F. of L . would enforce the contract , and that De Melia
was not a member in good standing at the time . When Isidor Tow asked
whether the A. F. of L . had any proof, Mayer replied , "We felt we had sufficient
proof * * * to make our case hold water." They also discussed the assump-
tion of responsibility for the requested lay-off of De Melia , and Isidor Tow
said that in view of the fact that De Melia had not had a "trial " as yet, she
was neither guilty nor not guilty in the respondent 's eyes . Mayer testified,
"we told him [Isidor Tow] that we would Insist upon her discharge while she
was under these charges , temporarily or otherwise."
On January 19, 1945, De Melia , accompanied by an attorney , appeared before
the Executive Board of the A . F. of L. De Melia again asked Buitenkant for
a copy of the by -laws , and requested an adjournment of her "hearing" for 1
week . Bultenkant refused her the by-laws , and granted the adjournment but
told De Melia that she was not going to work at the respondent's plant, that
she would be out of a job the next day.
On January 20, 1945 , the respondent received the following letter from the
A. F. of L.:
FEDERAL LABOR UNION, LOCAL 22806
AFFILIATED WITH AMERICAN FEDERATION OF LABOR, NEw YORK STATE
FEDERATION OF LABOR, CENTRAL TRADES LABOR COUNCIL
1860 Broadway , Suite 1204, New York City
January 19th, 1945.
The American White Cross Laboratories, Inc.
52 Webster Avenue
New Rochelle, New York
Gentlemen :
This is to advise you that in view of the activities of Angie De Melia
we have determined that her conduct in this crucial period of national
emergency is of detriment and hinderance to the smooth operation of any
plant with which we have a contract . Particularly , is this true where
a firm has war contracts. She has consistently engaged in unnecessary
activity to formulate discontent , disruption , slow-down and discension [sic]
which we resent . It is, therefore, our considered opinion and she should
be suspended from further work in your plant until the Charges pending
against her by this Union are determined.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These Charges arised [sic] out of her efforts to create a dual union
situation in your plant aligning one group of workers against another,
aligning herself with different people from time to time, changing her
allegiances as suited her convenience all for the purpose of destroying
peaceful labor relations between Your Company and our Union.
We assure you that her continuance of her employment will be a detri-
ment to the welfare of both your firm and our Union and therefore it
would be more prudent and wise that she be suspended. There is no need
for sympathetic consideration for her. She is married and her husband
is employed.
If you recall on previous occasions we have forgiven her actions and
have given her renewed opportunities. These chances she has forfeited.
This is more serious in view of the fact that she was a member of the
Executive Board and held office in our Union and is not an ignorant
worker, uninformed and unacquainted with the real facts. We fully
appreciate your co-operation that you are extending to us so that our
continued labor relations may be peaceful and harmonious and that your
work may be carried on efficiently and that our obligations under the
contract may be fulfilled.
Very truly yours,
CHARLOTTE MAYER,
Financial Secry-Treas.
Isidore Tow admitted reading this letter upon its receipt in the respondent's
plant on January 20, 1945.
De Melia worked the entire day, January 20, 1945. At 5 p. in. Foreman
Castelia told her that the A. F. of L. had called and said she was not supposed
to work there and that she could not work there anymore. De Melia then
told Castelia that she was neither suspended nor expelled and that he had
no right to stop her from working. Castelia told De Melia that there was
nothing he could do, that Ruth Krieger, the respondent's vice president, had
received a call and that De Melia was not to report to work on Monday.
De Melia told him she would see Krieger on Monday and left the plant.
On Monday, according to the undenied testimony of De Melia, which the
undersigned credits, she saw Krieger and asked why she was being removed
from her job. Krieger told her that the A. F. of L. had called, but that it
was not "an order," merely "a request." When De Melia asked if Krieger had
any written notification, Krieger answered "No", whereupon De Melia said she
was neither suspended nor expelled and did not see why she had to be removed
from her job and that she would hold Krieger responsible. Krieger then tele-
phoned the A. F. of L. in De Melia's presence, and talked with Mayer saying,
"Angie is here and she said she is not expelled or suspended," and asked
De Melia to speak to Mayer. De Melia refused to speak to Mayer, and left
the plant. She has not been reemployed since January 20, 1945.
Under date of February 5, 1945, the respondent was notified by the A. F. of L.
as follows:
February 5th, 1945.
The American White Cross Laboratories, Inc.
52 Webster Avenue, New Rochelle, New York
Gentlemen :
This is to advise you that Angie De Melia was expelled from our Union.
Her employment must therefore be permanently terminated.
Very truly yours,
CHARLOTTE MAYER,
Financial Secty.Treasurer.
THE AMERICAN WHITE CROSS LABORATORIES, INC. 875
B. Concluding findings
The respondent defends its discharge of De Melia on the ground that its
action was obligatory under the mandatory provisions of its 1945 contract
with the A. F. of L., and that its contractual obligations viewed in conjunction
with the proviso in Section 8 (3) of the Act'" relieves it from legal respon-
sibility. On the other hand, counsel for the Board contends that the proviso
affords the respondent no protection against a violation of Section 8 (3), since
the respondent acceded to the discharge request of the A. F. of L. with knowl-
edge that it was based on A. F. of L. charges against De Melia for having
earlier exercised the rights guaranteed by Section 7 of the Act, and while a
question of representation was pending.
The broad issue thus posed, requiring a resolution of a seeming conflict
between the Act's fundamental purpose to guarantee to employees the oppor-
tunity to select representatives freely and the restrictions of the proviso in
Section 8 (3), is not a novel one. That same issue was presented to and
elaborately considered by the Board in the Rutland Court case?' In that case
the Board held that a valid closed-shop contract did not protect an employer
where the contracting union, shortly before the expiration of the contract,
persuaded the employer to discharge certain employee members of the con-
tracting union, because they had indicated their intention to seek representa-
tion by another Union. The Board there, after noting the legislative history
of the proviso, found that the proviso was "not a severable and separate portion
of the Act" but "must be construed in the light of the statutory statement of
policy and the general provisions of the Act, and if any seeming conflicts arise
they should be resolved so as to give proper effect to the salient provisions of
the Act." The Board pointed out that the "expressed purpose of the Act is to
insure employees of their own right of self-organization and a free choice of
representatives" and that, to be meaningful the right of employees to select
representatives must necessarily include the right "at some appropriate time,"
such as where a contract was about to expire, to change representatives. The
Board reasoned that the purpose of the Act would be defeated if the proviso
were "considered an instrument for depriving employees of their statutory
right to select another representative for a period succeeding the term em-
braced by the closed-shop contract," and concluded that to uphold under the
proviso the discharge of employees whose representation was in issue would
be "clearly inconsistent with the whole policy and general scheme of the Act."
In the instant case, it is clear that De Melia's activities which led to the
A. F. of L.'s charges against her, and, in turn, to her discharge by the respond-
ent were performed in furtherance of her right to self-organization. Although
the 1945 contract with the A. F. of L. was executed on November 22, 1944, it
is apparent from the testimony of Isidor Tow, that it was meant to succeed,
not supersede, the 1944 contract, and that it was not intended to take effect
until January 1, 1945, at the expiration of the 1944 contract . De Melia's
activities were directed to the selection of a new bargaining agent to succeed
the existing bargaining agent at the end of the 1944 contract term ; they were
1 The proviso is that nothing in the Act " shall preclude an employer from making an
agreement with a labor organization (not established, maintained, or assisted by any
action defined in this Act as an unfair labor practice) to require, as a condition of
employment, membership therein, if such labor organization is the representative of the
employees as provided in Section 9 (a), in the appropriate collective bargaining unit
covered by such agreement when made."
13 Matter of Rutland Court Owners, Inc, 44 N. L It. B. 58T, 46 N. L. R. B. 1040.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in at "an appropriate time," when a question concerning representation
existed and when, under the principles of the Rutland Court case, accommoda-
tion to the fundamental purposes of the Act required the restrictions sanctioned
by the proviso to give way to the more basic right of employees to change
representatives. Therefore it is immaterial that De Melia was discharged
after the 1945 contract had already come into existence, even assuming the
validity of that contract.
Under the circumstances herein found and upon the record as a whole, the
undersigned is convinced that the respondent was not required on the request
of the A. F. of L., under the terms of the 1945 contract, to suspend or discharge
De Melia until the charges pending against her by the A. F. of L. were deter-
mined. On the contrary, the respondent having notice of the illegal purpose
behind the request was obligated as a matter of law to refuse to comply with
the request."
The complaint also alleges that De Melia was discharged by the respondent
for having testified at the Board hearing in Case No. 2-R-5209, referred to
above. According to Mayer's undenied and credited testimony, on January 18,
1945, she read to Isidor Tow over the telephone the charges set forth in the
letter sent by the A. F. of L. to De Melia which included the following: "That
you [De Melia] appeared before the National Labor Relations Board in certain
petitions against our Union." Since the respondent acceded to the discharge
request of the A. F. of L. with knowledge that it was based, at least in sub-
stantial part, on charges that De Melia appeared as a witness in a Board
hearing, the question thus posed is: Does the proviso in Section 8 (3) afford
the respondent protection against a violation of Section 8 (4)? Section 8 (4)
of the Act expressly prohibits the discharge or any other form of discrimination
against an employee "because he has filed charges or given testimony under
the Act." Under Section 8 (4), unlike Section 8 (3), the prohibition against
discrimination is unconditional, and an employer cannot defend its action
pursuant to the normal protection afforded by a closed- shop contract.
In the instant case, the fact that De Melia testified as a witness at a Board
hearing was, it is found, a motivating factor which caused the A. F. of L.
to file charges against her. It is clear that the respondent was aware of this
fact, since as found above, the A. F. of L. attorney in the presence of the
respondent threatened De Melia with the loss of her job, after she had testified
at the Board hearing. It is noteworthy that although the A . F. of L. was
aware of De Melia's dual union activities prior to the date when she testified
at the Board hearing, it did not take action against her or face her with
charges of any nature. However, the day following her appearance as a wit-
ness at the Board hearing, she received a letter from the A. F. of L. ordering
her to appear before its Executive Board to answer charges which included
the fact that she "appeared before the National Labor Relations Board in
is It is noted that at the time of her discharge on January 20, 1945, De Melia was
neither suspended nor expelled from the A. F. of L., and according to her uncontradicted
testimony which the undersigned credits, her dues were paid up until January 1945
Whether the principle enunciated in Matter of Federal Engineering Co, Inc., et al, 60
N. L R. B 592, and Matter of Ansley Radio Corporation, 18 N. L. R. B 1028, that is,
that a closed-shop agreement does not authorize a discharge of an employee whose
membership is in good standing with the contracting union has not been contested merely,
because the discharge is demanded by the contracting union or because the employee is
subject to expulsion is applicable to the facts in the instant case, it is unnecessary to
determine, since the complaint does not allege that the discharge was predicated on the
fact that De Melia was not in fact suspended or expelled from the A. F. of L. In any
event it is clear under the Rutland Court principle, that the discharge of De Melia was
in violation of the Act.
THE AMERICAN WHITE CROSS LABORATORIES, INC. 877
certain petitions against our Union," and the A. F. of L. informed the respond-
ent of these charges. Under the circumstances herein found, and upon the
record as a whole, the undersigned is convinced and finds that the respondent
in complying with the A. F. of L.'s request to discharge De Melia violated
Section 8 (4) as well as Section 8 (3) of the Act.
It is therefore found that the respondent, by its discharge of De Melia on
January 20, 1945, and failure thereafter to reinstate her, discriminated in
regard to her hire and tenure of employment, thereby discouraging membership
in the C. 1. 0., and interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section 1, 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.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist from the unfair labor
practices found and take certain affirmative action designed to effectuate the
policies of the Act. A broad cease and desist order is not being recommended
by the undersigned for the reason that from the type of violation found herein,
there appears to be no danger that the respondent will commit other violations
of the Act in the future "from the course of his conduct in the past." 76 It has
been found that on January 20, 1945, the respondent discriminatorily discharged
Angelina De Melia. It will be recommended that the respondent offer Angelina
De Melia immediate and full reinstatement to her former or substantially
equivalent position without prejudice to her seniority and other rights and
privileges and that the respondent make Angelina De Melia whole for any
loss of pay she may have suffered by reason of the discrimination against her
by payment to her of a sum of money equal to that which she normally would
have earned as wages, from January 20, 1945, the date of her discriminatory
discharge, to the date of the offer of reinstatement less her net earnings i*
during said period.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
is The respondent at the conclusion of the hearing made a motion to dismiss on the
ground that De Melia failed to exhaust her remedies within the A F. of L. to seek
reinstatement. Under Section 10 (a) of the Act, the power of the Board to prevent
unfair labor practices "shall be exclusive, and shall not be affected by any other means
of adjustment or prevention that has been or may be established by agreement, code,
law, or otherwise." As found above, De Melia's discharge was effected by the respondent
upon a discriminatory basis. The undersigned finds no merit to the respondent's motion
and it is hereby denied.
is V L. R. B v Empress Publishing Co, 312 U. S 426
"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
elsewhere 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 Hatter of Crossett Lumber Company , 8 N L. R . B. 440 . Monies received for work
performed upon Federal , State, county , municipal , or other work -relief projects shall be
considered as earnings . See Republic Steel Corporation v N. L. R. B., 311 U. S. 7.
878 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAw
1. United Retail, Wholesale and Department Store Employees of America,
CIO, 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 employment of
Angelina De Melia thereby discouraging membership in United Retail, Whole-
sale and Department Store Employees of America, CIO, the respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Angelina De Melia because she gave testimony under the Act, the respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (4) of the Act.
4. By said acts, the respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act
and has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent, The American White Cross
Laboratories , Inc., New Rochelle, New York , its officers , agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its employees,
by discharging or refusing to reinstate any of its employees , or in any other
manner discriminating in regard to their tenure of employment or any term
or condition of employment for engaging in activities directed to the designa-
tion of a new bargaining representative to succeed an existing bargaining rep-
resentative at the end of the latter 's contract term ;
(b) Discharging , refusing to reinstate , or otherwise discriminating against
an employee because he has given testimony under the Act;
(c) Any other acts in any manner interfering with the efforts of its em-
ployees to designate a new bargaining representative to succeed an existing
bargaining representative upon the termination of the latter 's contract.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to Angelina De Melia immediate and full reau,tatement to her
former or substantially equivalent position without prejudice to her seniority
and other rights and privileges ;
(b) Make whole Angelina De Melia for any loss of pay she may have suf-
fered by reason of the respondent's discrimination against her , by payment
to her of a sum of money equal to that which she normally would have earned
as wages from the date of respondent 's discrimination against her to the date
of the respondent 's offer of reinstatement less her net earnings 18 during such
period ;
(c) Post at Its plant at New Rochelle , New York, copies of the notice attached
hereto marked "Appendix A." Copies of said notice , to be furnished by the
Regional Director for the Second Region , shall, after being duly signed by the
18 See footnote 17, supra.
THE AMERICAN WHITE CROSS LABORATORIES, INC. 879
respondent 's representative , be posted by the respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respondent to
insure that said notices are not altered, defaced, or covered by any other
material;
(d) File with the Regional Director for the Second Region on or before
ten (10) days from the day of receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen ( 15) days from
the date of the entry of the order transferring the case to the Board , pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies
of a statement in writing, setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding ( including rulings upon
all motions or objections) as he relies upon, together with the original and
four copies of a brief in support thereof. Immediately upon the filing of
such statement of exceptions and/or brief, the party or counsel for the Board
filing the same shall serve a copy thereof upon each of the above parties and
shall file a copy with the Regional Director. As further provided in said
Section 33, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of the order transferring the case to the Board.
SIDNEY LINDNER,
Trial Examiner.
Dated January 18, 1945.
"APPENDIX A"
NOTICE TO ALL EMPLOYEES PURSUANT TO THE RECOMMENDATIONS OF A TRIAL
EXAMINER
of the National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization of our
employees, by discharging or refusing to reinstate any of our employees,
or in any other manner discriminating in regard to their tenure of em-
ployment or any term or condition of employment, for engaging in activi-
ties directed to the designation of a new bargaining representative at the
end of the latter's contract term.
WE WILL NOT discharge, refuse to reinstate, or otherwise discriminate
against any of our employees because he has given testimony under the
National Labor Relations Act.
WE WILL NOT engage in any other acts in any manner interfering with
the efforts of our employees to designate a new bargaining representative
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to succeed an existing bargaining representative upon the termination of
the latter's contract.
WE WILL OFFER to the employee named below immediate and full
reinstatement to her former or substantially equivalent position without
prejudice to any seniority or other rights and privileges previously en-
joyed, and make her whole for any loss of pay suffered as a result of the
discrimination.
Angelina De Melia
THE AMERICAN WHITacnoss LABORATORIES, INC.,
Employer.
Dated ..................... By..........................................
(Representative) (Title)
NoTE : Any of the above-named' employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
In accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.