Atlas Bag and Burlap Co., Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1936

1 N.L.R.B. 292 (N.L.R.B. 1936)

In the Matter of ATLAS BAG AND BURLAP COMPANY, INC. and MILTON
ROSENBERG , ORGANIZER , BURLAP & COTTON BAG WORKERS LOCAL
UNION No. 2469, AFFILIATED WITH UNITED TEXTILE WORKERS UNION
Case No. C-34.-Decided March 4, 1936
Second-hand Bag Industry-Interference, Restraint or Coercion: engendering
fear of loss of employment for union membership or activity ; expressed opposi-
tion to labor organization, threats of retaliatory action ; propaganda against
union ; threat to close plant ; villifying union and union organizers ;-Unit Appro-
priate for Collective Bargaining: production employees-Representatives: proof
of choice : membership in union-Collective Bargaining: refusal to negotiate
with representatives ; meeting with representatives but with no intention of
bargaining in good faith ; bargaining with individual employees-Company-
Dominated Union: announcement of intention to form ; domination and inter-
ference with formation and administration ; financial or other support ; initiation
and sponsorship ; disestablished as agency for collective bargaining-Employee
Representation Plan: form and operation-"Yellow Dog" Contract.
Mr. David A. Moscovitz for the Board.
Mr. L. L. Balleisen, of Brooklyn, N. Y., for respondent.
Mr. Fred. G. Krivonos, of counsel to the Board.
DECISION
STATEMENT OF CASE
Charges and amended charges having been duly filed by Milton
Rosenberg, Organizer, Burlap and Cotton Bag Workers Union Local
No. 2469 affiliated with the United Textile Workers Union (herein-
after termed the union), the National Labor Relations Board, by its
agent, the Regional Director for the Second Region, issued and duly
served its complaint dated November 12, 1935, against the Atlas
Bag and Burlap Company, Inc., Brooklyn, New York, respondent
herein, alleging that the respondent has engaged and is engaging in
unfair labor practices affecting commerce in violation of Section
8, subdivisions (1), (2), (3) and (5) of the National Labor Rela-
tions Act. The complaint, in substance, alleges as follows :
That the respondent, a New York corporation, having its principal
office and principal place of business in Brooklyn, New York, is
engaged in the purchase, reconditioning, sale and distribution of
second-hand burlap bags, and causes and has continuously caused a
,substantial amount of such bags to be purchased and transported
292
DECISIONS AND ORDERS 293
in interstate commerce, and causes and has continuously caused the
bags reconditioned by it to be sold and transportein interstate
commerce, from and through states of the United Sties other than
the State of New York;
That the respondent's production employees constitute an appro-
priate unit for the purposes of collective bargaining; that a majority
of these employees designated the union to represent them for the
purposes of collective bargaining with the respondent; that by virtue
of Section 9 (a) of the National Labor Relations Act, the said union
has been the exclusive representative of all employees in such unit
for the purposes of collective bargaining; that the union, by Milton
Rosenberg, on or about October 15, 1935, sought to bargain collec-
tively with the respondent in behalf of all of its production em-
ployees; and that the respondent refused to bargain collectively
with the union as the exclusive representative of its production em-
ployees; thereby engaging in unfair labor practices within the mean-
ing of Section 8, subdivisions (1) and (5) of the said Act;
That the respondent has dominated and interfered with the forma-
tion and administration of a labor organization of its employees,
known as the "Collective Bargaining Committee of the Atlas Bag
and Burlap Company", and notified its employees that, as a condi-
tion of continued employment, they must sign individual contracts
designating such "Collective Bargaining Committee" as their repre-
sentative for the purposes of collective bargaining, the said contract
containing, among others, provisions that the employees shall not
have the right to request recognition by the respondent of any union;
and that the respondent made it clear by acts and threats, that a
failure to comply with such notification would result in discharge or
lockout of its employees; thereby engaging in unfair labor practices
within the meaning of Section 8, subdivisions (1), (2) and (3) of
the said Act.
The respondent's answer fails to reply to the allegations as to its
corporate organization or the appropriate bargaining unit; but it
denies the other allegations in the complaint and also alleges : that
it had no knowledge or proof that a majority of its employees had
designated the union as their representative for collective bargaining;
that the respondent did confer with Rosenberg, the union's represent-
ative, but that Rosenberg did not submit any proposals in writing;
that the "Collective Bargaining Committee" was initiated by a re-
quest from several of the respondent's employees for a conference
with the respondent concerning the formation of a "shop union";
that the respondent, through its president, L. Prosnitz, then sought
the advice of L.,L. Balleisen, Industrial Secretary of the Brooklyn
Chamber of Commerce, who furnished him with documents to be
294 NATIONAL LABOR RELATIONS BOARD
used by the, respondent's employees in the formation of a . "shop
union"; and at the respondent did not participate in the formation
of the "Collective Bargaining Committee" and did not threaten
its employees in securing signatures to the contract thereafter signed
by several of its employees.
Pursuant to notice thereof, Dr. John A. Lapp, duly designated as
!Trial Examiner, conducted a hearing commencing on November 20,
1935 at the Federal Building, Brooklyn, New York. The respondent
appeared by L. L. Balleisen, Industrial Secretary of the Brooklyn
Chamber of Commerce, acting under the respondent's power of at-
torney, •and participated in the hearing. The Board was represented
by counsel. At the close of testimony for the Board, the respondent
moved to dismiss the complaint for lack of proof of the allegations
therein and on the grounds that the respondent's business is not
in interstate comlerce. The motions were denied by the Trial
Examiner.
Full opportunity to be heard, to cross-examine witnesses and to
produce evidence was afforded to all parties. Upon the record thus
made, the stenographic report of the hearing and all evidence, oral
and documentary, offered and received at the hearing, the Trial'Ex-
aminer, on December 23, 1935, filed an intermediate report, finding
and concluding that respondent had committed unfair labor prac-
tices affecting commerce in violation of the National Labor Relations
Act as alleged in the complaint. The respondent filed exceptions to
the intermediate report, contending that the Trial Examiner's find-
ings are not sustained by the evidence and that the National Labor
Relations Act is unconstitutional.
Acting pursuant to Article II, Section 34, National Labor Relations
Board Rules and Regulations-Series 1, the Board, upon the entir.a
record in the proceeding, makes the following :
FINDINGS OF FACT
A. THE RESPONDENT AND ITS BUSINESS
1. The respondent, Atlas Bag and Burlap Company, Inc:, is and
has been since October 8, 1932, a corporation organized under and
existing by virtue of the laws of the State of New York, having
its principal office and place of business in the Borough of Brook-
lyn, Kings County, State of New York (hereinafter termed the
plant).
II. (a) The respondent is engaged in the business of purchasing,
reconditioning by cleaning, mending, repairing, sorting and print-
ing, and selling and distributing second-hand burlap and cotton bags
in the State of New York and many other states and in foreign
countries.
DECISIONS AND ORDERS 295
. (b) The respondent 's purchases of used bags are made by its
representatives , from persons engaged in the business,of gathering
such bags and directly from "eniptiers", such as chain stores, bakeries
and the like. The respondent 's sales are made by its representatives
"all over the country ". The respondent's president , L. Prosnitz;
travels ("goes on the road") to other states for the purpose of making
such purchases and such sales ; while "on the road", he sends the or-
ders he receives for reconditioned bags to the respondent 's plant in
Brooklyn, where they are filled. Purchases and sales are also made
by telephone , by mail and through persons who call at the respond-
ent's plant.
(c) The second-hand bags purchased by the respondent are de-
livered to a platform at the plant , to a large extent by the vendors'
own trucks ; such bags are also delivered by common carriers and
forwarders by rail, water and truck . The bags reconditioned and
sold by the respondent are transported from a platform at its plant
through forwarders and common carriers by truck, rail and water.
The respondent 's employees carry the bags received from the plat-
form into the plant; they carry the bales of reconditioned bags to
the platform and the tail-ends of trucks; sometimes they help load
the bags on the trucks.
(d) Upon arrival at respondent 's place of business , the bags are
cleaned by machine, sorted , repaired or mended by machine, in-
spected and sorted again for size and quality, counted and baled.
Upon order, bags are printed on the respondent 's printing presses
with the purchaser 's name or trademark or whatever is specified.
The respondent makes shipments on order. Although Stampa, its
secretary, testified that a stock of two or three hundred thousand
bags is normally kept in the plant, he also testified that it is custo-
mary not to have sufficient stock on hand to fill orders , requiring
the respondent to make purchases in order to do so. According to
Stampa's testimony , bags purchased by respondent normally remain
in its plant for four or five weeks; the actual operation of recon-
ditioning a single bag takes half a minute . The bags reconditioned
by the respondent go out of its plant substantially as they come in.
They come in as bags and , after improvement in the course of the
respondent 's processing operations , go out as bags. -
(e) In the course of the respondent 's business there is a con-
tinuous flow of second -hand bags to its plant from states other
than the state of New York and from its plant to states other than
the state of New York. A substantial proportion , approximately
26% for the year ended November 15, 1935, of the bags purchased by
the respondent is caused by the respondent to be purchased and trans-
ported in interstate commerce from states other than the state of New
97571-36-vol i-20
296 NATIONAL LABOR RELATIONS BOARD
York to its plant in Brooklyn, New York, and a considerable portion,
approximately 83% for the same period, of the bags sold by the
respondent is caused by the respondent to be sold and transported in
interstate commerce to states other than the state of New York from
its plant in Brooklyn, New York.'
B. THE BARGAINING UNIT
III. The production employees at the respondent's plant in Brook-
lyn, excepting those engaged in a supervisory capacity, constitute a
unit appropriate for the purposes of collective bargaining.
C. THE UNION AND ITS ORGANIZER
IV. The Burlap and Cotton Bag Workers Local Union No. 2469
is a labor organization composed of burlap and cotton bag workers,
including employees of the respondent. Milton Rosenberg, an
accredited organizer and label agent for the American Federation of
Labor (Exhibit B-10), is also an accredited general organizer for
the United Textile Workers of America, an A. F. of L. affiliate
(Exhibit B-11). Local Union No. 2469 is affiliated with the United
Textile Workers of America. Rosenberg is the organizer and the
business representative of Local Union No. 2469, which position he
occupied during the month of October, 1935.
D. THE RESPONDENT AND THE UNION
V. For nine weeks, from about July 30 to September 30, 1935, all
of the respondent's employees were out on strike in an effort to secure
a written working agreement with the respondent. The strike took
place when the respondent refused to consider a proposed collective
agreement with a labor organization then known as the New and
Used Burlap and Cotton Bag Workers Union (hereinafter termed
the old union), affiliated with the United Hebrew Trades, composed
of workers in the industry and of which the respondent's employees
then were members. On September 30th the respondent's employees
returned to work, having lost the strike, and without any collective
agreement with the respondent.
i For the twelve months from November 15, 1934 to November 15, 1935, the respondent's
purchases and sales were as follows: (Statement furnished by the respondent under oath
,in conformity with agreement made at hearing )
Purchases : Sales :
In New York State ------ $83,161 52 In New York State------ $25,064.66
In 5 other States and In 29 other States, Italy,
Porto RICO------------ 29, 625 25 Austria -------------- 126, 566. 64
Total______________ $ 112,786 77 $151,631 30
The statement furnished by the respondent indicates purchases in five states during the
calendar year ended November 15, 1935. Stampa, the respondent 's secretary , testified that
the respondent 's purchases generally are made in eight states.
DECISIONS AND ORDERS 297
VI. Thereafter, at a meeting of the old union, on October 3, 1935,
attended by about 75 workers in the industry, including a number of
the respondent's employees, it was unanimously decided to affiliate
with the United Textile Workers of America, a labor organization
associated with the American Federation of Labor. Rosenberg, the
organizer, was present at this meeting and at a subsequent meeting
on October 10th and spoke to the workers. The testimony is clear
that affiliation with the United Textile Workers included business
representation through Rosenberg. The minutes of the October 10th
meeting show that Rosenberg "will act as our business agent from
now on" (Exhibit B-7). The group was subsequently chartered as
the Burlap and Cotton Bag Workers Local Union No. 2469 (the
union in this case), and at a meeting on October 24, 1935, Rosenberg
swore in the officers and the members (Exhibit B-8).
VII. Nick Stannish, vice-president of the old union and of Local
No. 2469 and an employee of the respondent, was delegated, at the
meetings on October 3rd and 10th described above, to secure appli-
cations and the initiation fees from his fellow workers, and to turn
them over to the union secretary, who was then to fill out application
cards with receipt stubs attached, the latter to be given by Stannish
to the members who had paid. The testimony and exhibits show
that 14 of the respondent's total of 18 production employees in this
manner became members of Local No. 2469. One of the member-
ships was repudiated. This leaves a total of 13 of the respondent's
18 employees 2, a clear majority, who are members of Local No,
2469, and who designated the union as their representative for the
purposes of collective bargaining, thus constituting Local No. 2469,
2 Exhibit B-9 consists of 13 application cards to the United Textile Workers of America
showing that the initiation fee of each applicant named thereon had been paid and received
by the union , as follows :
Molly Rocco Edna Savoldl Casper Filippi Helen Abramcyzk
Mary Waslewski Helen Bychuck Lucy Rocco Julius Kaplan
Stella Merkel Joe Stabile Nick Stannish Stella Fiancyk
Stella Rabowski
These are all dated as received October 14, 1935, except 'the card of Stannish, dated
November 12th, who, according to the testimony , had voted for affiliation with the
United Textile workers at the October 3rd meeting . was present at the October 10th
meeting, but had not in fact paid his initiation fee until November 12th
Stannish, union vice-president , testified that 14 of the respondent 's 18 employees paid
the initiation fee, received the receipt stubs, attached to the application cards, and
became members of Local No . 2469. These , according to his uncontradicted testimony,
comprise the employees whose cards appear in Exhibit B -9, as specified above , excepting
Stella Francyk, and, in addition , Alice Kowsh and Alice Nikitick . Miss Kowsh testified
that she was a member of the union and wanted the union and Rosenberg to represent
her The membership of Miss Nikitick is not questioned in the record.
Molly Rocco , whose card appears in the exhibit, repudiated union membership in her
testimony ; and there is testimony that Stella Francyk is not employed by the respondent
This leaves an unquestioned total of 13 of the respondent 's 18 employees who are
members of the union and who consequently designated the union and Rosenberg to
represent them for the purposes of collective bargaining
298 NATIONAL LABOR RELATIONS BOARD
by virtue of Section 9 (a) of the Act, as the exclusive representative
of all of the respondent's employees for the purpose of collective
bargaining.
VIII. (a) On October 15, 1935, Rosenberg called on the respondent
for the purpose of negotiating an agreement. Although he had a
conversation with Stampa, the respondent's secretary, and D. Pros-
nitz, brother of the respondent's president and a member of the firm,
when he broached the subject of an agreement he was told to await
the return of L. Prosnitz, the respondent's president, in a few days-
On October 18th Rosenberg met both the Prosnitz brothers and
Stainpa. He had a proposed agreement in his pocket. But L. Pros-
nitz told him he was not ready to sign a union agreement and asked
him to wait until November 1st. On October 22nd, Rosenberg met
the Prosnitz brothers again, and asked L. Prosnitz to look at a
proposed. agreement which he offered him. Again, Prosnitz refused
to sign anything and stated he could make no reply until Novem-
ber 1st. Neither L. Prosnitz nor the others, at any of these meet-
ings, questioned Rosenberg's authority to represent the respondent's
employees or asked for his credentials.
(b) On October 25th, at a regular membership meeting of the
Local No. 2469, Rosenberg was told by some of the respondent's em-
ployees that their employer was attempting to form a company union.
On November 1st, Rosenberg telephoned the respondent, and spoke
to D. Prosnitz. Rosenberg asked him if the respondent was ready
to negotiate an agreement with the union. The reply, according to
Rosenberg's uncontradicted testimony, was, "'we are forming a com-
pany union' and he hung up".
E. THE RESPONDENT AND THE "COLLECTIVE BARGAINING COMMITTEE"
IX. Meanwhile, according to the testimony of Michael Mignone,
an employee of the respondent and formerly a member of the old
union but not a member of Local No. 2469, he presented a hand-
written letter to the respondent on October 22, 1935, requesting a
"talk . '.. about farming a shop union" (Exhibit B-2). The letter
is signed by eight of the respondent's employees, three of whom are
,members of Local No. 2469 and who testified that they wanted the
union to represent them and that they had signed this communication
at the request of the management or because of fear of the loss of
their jobs. Mignone testified that the proposal for a "shop union"
was his' own idea and that he had acted on the advice of his father,
,a union man.
X. On October 22nd, the same day the letter specified in finding
IX was received by the respondent, L. Prosnitz, its president, took
the -letter to L. L. Balleisen, Industrial Secretary of the Brooklyn
Chamber of Commerce, and asked for his advice. The respondent
DECISIONS AND ORDERS 299
is not a member of the Chamber. According to Balleisen's own
testimony, he informed Prosnitz that "this letter is written so that
the average individual . . . would be suspicious. It looks too much
like collusion." He also said to Prosnitz, "the thing for you to do
would be to put it in the form that I have used in other companies".
'Thereupon, Balleisen testified, he dictated to his secretary forms of
two letters, to be used by Prosnitz and his employees in the fcrina-
tion of a "shop union" and its recognition by the respondent. One
was the form of a letter, from the employees to the respondent, dated
October 23, 1935, announcing to the respondent that a "shop union"
had been organized and that officers had been elected and a "collec-
tive bargaining committee" had been appointed, and the other was
the form of a letter from the respondent, recognizing the "shop
union" and the "committee". According to Balleisen's testimony,
Prosnitz "was to give this copy (of the letter dated October 23rd)
to the employees and when they . . . got it signed, he would recognize
it, and I dictated the type of letter that he should answer. . ." He
also advised Prosnitz that the respondent's employees hold an elec-
tion to choose officers for the "shop union" and select the "collective
bargaining committee", and stated that he would furnish Prosnitz
with a form of agreement which he had used in other places to be
used as a model for a contract with the respondent's employees.
XI. (a) L. Prosnitz gave Mignone the form of the letter dated
'October 23rd, drafted by Balleisen. Mignone testified that Prosnitz
spoke to him of his conference with Balleisen and that Prosnitz
"told me this was the form it was going to be in, and that they
-would have an election and vote for officers and have the shop union".
(b) On October 25, 1935, some of the respondent's employees were
called by Mignone, his brother, Anthony, and James Zucchetto, both
also employees of the respondent, to participate in an election of
-officers for a "shop union". Not all of the respondent's employees
were summoned. The testimony is clear that those known to be
staunch union members were not asked and did not participate in
the election. By permission of one of the Prosnitz brothers, the
-election took place in-the respondent's plant, very close to the office.
Pinto, the foreman, was present, and Stampa and L. Prosnitz passed
by the place where it was held at the tim6. There were no nomina-
tions. The employees were told to vote for any one they wanted.
The Mignone brothers and Zucchetto counted the ballots. Michael
Mignone announced the results : Michael Mignone elected president,
Pinto, the foreman, vice-president, and Zucchetto, secretary.
(c) On the same day, October 25, 1935, the respondent received
from Michael Mignone a letter dated October 23, 1935, announcing
the organization of a "shop union" (the "Atlas Bag and Burlap Co.,
Inc. Employees Union"), the election of officers and the appoint-
300 NATIONAL LABOR RELATIONS BOARD
ment of a "collective bargaining committee" (the "Collective Bar-
gaining Committee of the Atlas Bag and Burlap Company"), and
requesting recognition. This letter was signed by Mignone and ten,
other employees of the respondent, including Pinto, the foreman
(Exhibit B-3). Of these, four employees testified they were mem-
bers of Local No. 2469 and desired the union and Rosenberg to rep-
resent them, but had signed the letter through fear of the loss of
their jobs. Some of these testified they signed the letter in the re-
spondent's office, in the presence of Stampa, the respondent's secre-
tary. There is also testimony that Pinto, the foreman, solicited
signatures for the letter. The letter itself was actually typed on
October 25, 1935, by the daughter of L. Prosnitz, the respondent's
president, who is employed in the respondent's office. The letter is a
verbatim copy of the form letter composed by Balleisen, as set forth
in finding X above, including the very date thereon, October 23,
1935. The respondent, on the same day, recognized the "shop union"
and the "collective bargaining committee" in a letter, (Exhibit B-4)
which is a copy of the form letter given Prosnitz by Balleisen, as set
forth in finding X above.
(d) The "shop union" (the "Atlas Bag and Burlap Co., Inc. Em-
ployees Union") and the "collective bargaining committee" (the
"Collective Bargaining Committee of the Atlas Bag and Burlap
Company"), described above, are labor organizations composed of
employees of the respondent.
XII. (a) After the election and exchange of letters, set forth in
finding XI above, identical individual contracts of employment- were
presented by L. Prosnitz to some of the respondent's employees. The
form of the contract, like the letters, was furnished to L. Prosnitz by
Balleisen. In form these contracts were signed by the "collective
bargaining committee" (the "Collective Bargaining Committee of
the Atlas Bag and Burlap Company") specified in the letter of
October 23rd to the respondent (Exhibit B-3), and were to be signed
by the employer and by each individual employee. Each of the
five committee members signed each contract as a committee member
and each signed such a contract individually. Pinto, the foreman,
also signed such a contract, as did Rose Marchi, an employee who
does not read or write English.
(b) On November 1, 1935, the respondent's employees were as-
sembled in the plant at the direction of L. Prosnitz and were ad-
dressed by L. L. Balleisen for about 45 minutes. He read portions
of the contract to them from a copy he held in his hand, made ex-
planatory remarks, and denounced outside unions as rackets and
union organizers as racketeers. He expatiated on the advantages of
a "shop union" and emphasized that it required no payment of dues.
DECISIONS AND ORDERS 301
According to the testimony of some of the respondent's employees,
Balleisen also made a statement that he would advise the respondent
to close its plant unless its employees signed the contracts. Bal-
leisen's own testimony as to this statement is that, "I made the state-
ment that if I was the employer of this plant and I saw conditions
of that sort, I would stop operating my plant until the employees
agreed between themselves as to what they wanted".
(c) Thereafter, at least two more of the respondent's employees
signed contracts. Both were members of Local No. 2469 and both
testified they signed the contract through fear of the loss of their
jobs. There is testimony that after Balleisen's speech Pinto, the
foreman, took open measures indicating that the respondent was pre-
paring to close its plant. There is also testimony that Pinto and
L. Prosnitz participated in soliciting signatures to contracts.
XIII. (a) The contract furnished to the respondent by Balleisen
and signed by the "collective bargaining committee" and by each of
nine of the respondent's employees, including the foreman (Exhibits
B-5, R-6-14), states that it is an agreement between the respondent
"and the duly elected Collective Bargaining Committee of the em-
ployees of the Atlas Bag and Burlap Company, and the Atlas Bag
and Burlap Company Employees' Union consisting of the employees
of said company, and each and every one of the employees of said
company". Although disguised as a collective agreement, the con-
tract, expressly intended for individual signature by employees, is
an individual contract of employment.
(b) The contract further provides for the wage scale in force on
October 25, 1935, for a 40-hour week, and for extra overtime pay for
time in excess of 520 hours during any 13-week period. The re-
spondent in the contract agrees not to resort to the lockout, but re-
serves the right to discharge or lay off employees for specified rea-
sons. The contract provides that the employees agree that "they or
any of them" will not go out on strike "during the entire period of
this agreement to November 1, 1940".
(c) The contract also provides that "any employee has a right to
join any union of his own choosing, or refrain from joining any
union. Furthermore, no employee or person working for the em-
ployer shall be obliged or required to, but may voluntarily, join the
employees' union of the Atlas Bag and Burlap Company. The em-
ployees, or any of them shall not and have not the right to demand
a closed shop or recognition by the employer of any union, and the
employer has the absolute and unqualified right to hire or discharge
any employee or employees for any reason or for no reason, and
regardless of his or their affiliation or non-affiliation with any union".
Such discharge is not subject to arbitration or mediation, "and any
action of reinstatement, if any, will be taken voluntarily by the
302 NATIONAL LABOR RELATIONS BOARD
employer if it deems such reinstatement advisable". (Italics sup-
plied.)
XIV. There was no negotiation or discussion between the respond-
ent and "the committee" as to any of the terms of the contract.
There was no bargaining in any'sense of the term. Not a word or
even punctuation mark in the contract as presented by L. Prosnitz
was altered. Copies of the contract were just signed without ques-
tion by the employees, in the precise form originally furnished by
Balleisen to Prosnitz.
F. CONCLUSIONS
XV. The respondent's conduct as set forth in finding VIII above
constitutes a refusal to bargain with the exclusive representative of
all of its employees. This conclusion of fact is sharply emphasized
by the respondent's conduct set forth in findings X to XIV above
which negatives completely any intention on the part of the respond-
ent to bargain collectively with the representative so designated by
its employees.
XVI. (a) The respondent's conduct as set forth in findings X
,and XI above constitutes domination and interference with, the
formation and administration of labor organizations of its employees.
(b) Whether or not Michael Mignone, the avowed instigator of
the "shop union" and the "collective bargaining committee", acted
originally on his own initiative,3 every step he and those who asso-
ciated with him took after October 22, 1935, followed without an
iota of deviation the pattern and plan furnished to L. Prosnitz, the
respondent's president, by Balleisen, and transmitted by Prosnitz to
Mignone. The right of employees to be free from such domination
or interference, guaranteed them by the National Labor Relations
Act, and the correlative duty imposed upon the employer not to so
-dominate or interfere, cannot be evaded by the obvious and trans-
farent subterfuge of, ready-made "shop union" plans furnished to
employers by the Industrial Secretary of a Chamber of Commerce,
an association of employers. The evidence clearly establishes the
-fact that the respondent participated not only in securing the "shop
-union" plan from Balleisen, but also took an active part in "putting it
over". The respondent's officers and foreman solicited signatures
to the letter dated October 23rd, furnished the services of its ste-
nographer, and the use of its office, participated or were present at
the "election" on October 25th. The parts played by Al. Mignone
and his associates in perfecting the "shop union" and the "collective
' The Trial Examiner , who heard Mignone testify , says in his intermediate report
-(page 6 ) • "The conflicting nature of Mr. Mignone 's testimony throws doubt upon the
-statements of his own participation in the formation of the shop union "
DECISIONS AND ORDERS 303.
bargaining committee" were obviously directed by the respondent in
accordance with the scenario furnished by Balleisen.
(c) The entire "shop union" plan is a sham, a formula for a puppet
organization devised to deprive employees of the right to self organ-
ization and collective bargaining guaranteed them by the National
Labor Relations Act, and made readily available, wholesale, to em-
ployers determined to deprive their employees of such rights or igno-
rant of their true meaning. The respondent in this case secured and.
provided M. Mignone with the "shop union" plan and participated
in the formation and administration of the "shop union" and the
"collective bargaining committee".
(d) The true nature of the "shop union" and the "collective bar-
gaining committee" is further revealed by the manner in which the
committee accepted the contracts furnished by Balleisen and pre-
scnted to L. Prosnitz. These agreements, according to the employees
who signed them, were subscribed by each of the committee members
as a committee member and individually without question, discus-
sion or change of a word or punctuation mark. There was no bargain-,
ing in any sense of the term. Signatures were solicited by the fore
man and by L. Prosnitz. Two of the employees who signed testified
they did so out of fear of the loss of their jobs; two of them do not
read or write English, and testified that the contract was not read or
explained to them.
(e) The nature and purpose of the respondent's conduct is empha-
sized by the fact that its activity in behalf of a "shop union" and
the "collective bargaining committee" came just after the respondent
had been approached for the purposes of collective bargaining by
Rosenberg, the business representative of Local No. 2469, then repre-
senting a clear majority of its employees, and just after L. Prosnitz
had put Rosenberg off until November 1st. See Finding VIII (a)
above.
XVII. (a) The contract furnished by Balleisen and used by the
respondent for individual agreements with its employees as set forth
in findings XII to XIV above, constitutes an individual anti-union,
or "yellow dog" contract of employment, discriminatory in regard
to terms or conditions' of employment and discouraging to member-
ship in a labor organization, in this case Local No. 2469.
(b) The contract deprives each employee who signs it of the right
to strike until November 1, 1940, of the right to demand recognition
of any union by the employer, and of the right to question discharges
for any reason or no reason regardless of his affiliation or non-affilia-
tion with any union. Despite the lip-service rendered by the terms
of the contract to the right of an employee to join any union of his
own choosing, the agreement deprives each employee subscriber of
304 NATIONAL LABOR RELATIONS BOARD
the fundamental rights inherent in union affiliation and activity-
the right to union recognition, which means the right to collective
bargaining, the right to concerted activities for mutual aid or pro-
tection, which is guaranteed to employees in Section 7 of the National
Labor Relations Act, and the right to protest against the employer's
exercise of his most powerful anti-union weapon, discharge for union
affiliation or activity. It would be hard to devise a more patently
anti-union or "yellow dog" contract, or one more discouraging to
membership in a labor organization.
XVIII. The respondent's (a) refusal to bargain with the exclusive
representative of all its employees as set forth in findings VI to
VIII and XV above, (b) its domination and interference with the
formation and administration of the "shop union" and the "collective
bargaining committee" as set forth in findings IX to XI and XVI
above, and (c) its solicitation of and entering into the individual
contract of employment set forth in findings XII to XIV and XVII
above, and each item of such conduct, constitute interference, restraint
and coercion of its employees in the exercise of the rights in Section
7 of the National Labor Relations Act.
G. THE RESPONDENT'S CONDUCT IN RELATION TO INTERSTATE COMMERCE
XIX. The nine-weeks' strike which took place in the respondent's
plant from about July 30 to September 30, 1935, was caused by the
respondent's refusal to consider a collective agreement and to bar-
gain collectively with its employees through a labor organization of
which they were members, as set forth in finding V above, and said
strike diminished and reduced by about 50% of its normal volume
the respondent's business of reconditioning second-hand bags and its
purchase, sale and transportation of used and reconditioned bags in
interstate commerce.
XX. On the basis of experience in the respondent's plant and in
other plants, the respondent's conduct as set forth in findings XV
to XVIII above, and each item of such conduct, burdens and obstructs
commerce among the several States and the free flow of commerce,
and has led and tends to lead to labor disputes, burdening and
obstructing commerce and the free flow of commerce.
THE RESPONDENT'S EXCEPTIONS
The respondent's exceptions to the Trial Examiner's intermediate
report are based chiefly on the contentions that his findings of fact,
conclusions and recommendations are contrary to the evidence. The
findings of fact and conclusions set forth above are in substantial
accord with those of the Trial Examiner, whose intermediate report
we find to be supported by the evidence. The rulings of the, Trial
DECISIONS AND ORDERS 305
Examiner in denying the respondent's motions to dismiss the com-
plaint for lack of proof of the allegations therein and on the ground
that the respondent's business is not in interstate commerce are
affirmed. The respondent's motion, embodied in the exceptions to the
intermediate report, to dismiss the complaint for want of evidence
to sustain its allegations and the Trial Examiner's findings and con-
clusions is denied.
The respondent's final exceptions are based on the contention that
the National Labor Relations Act is unconstitutional, and amount to
a renewal of its motion to dismiss the complaint on that ground
made at the hearing before the Trial Examiner. The motion is
denied.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the
entire record in the proceeding, the Board finds and concludes as a
matter of law:
1. The Burlap and Cotton Bag Workers Local Union No. 2469,
affiliated with the United Textile Workers of America, and the "Atlas
Bag and Burlap Co., Inc. Employees Union" (the "shop union"),
and the "Collective Bargaining Committee" of the "Atlas Bag and
Burlap Company" (the "collective bargaining committee"), as set
forth in the findings of fact above, are labor organizations within the
meaning of Section 2, subdivision (5) of the National Labor Rela-
tions Act.
2. The production employees at the respondent's plant in Brooklyn,
excepting those engaged in a supervisory capacity, as set forth in the
findings of fact above, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the
National Labor Relations Act.
3. By virtue of Section 9(a) of the National Labor Relations Act,
the Burlap and Cotton Bag Workers Local Union No. 2469, affiliated
with the United Textile Workers of America, has been designated
and selected, as set forth in the findings of fact above, as the exclusive
representative of all of the respondent's employees for the purposes
of collective bargaining.
4. The respondent, by refusing to bargain collectively with the
representative of its employees, as set forth in the findings of fact
above, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8, subdivision (5) of the National
Labor Relations Act.
5. The respondent, by dominating and interfering with the forma-
tion and administration of labor organizations, as set forth in the
findings of fact above, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8, subdivision (2) of the
said Act.
306 NATIONAL LABOR RELATIONS BOARD
6. The respondent, by discouraging membership in the labor or-
ganization known as Burlap and Cotton Bag Workers Local Union
No. 2469, affiliated with United Textile Workers Union, by soliciting
and entering into individual anti-union contracts of employment with
its employees, said conduct constituting discrimination in regard to
terms and conditions of employment, as set forth in the findings of
fact above, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8, subdivision (3) of the said Act.
7. The respondent by the conduct referred to• in the preceding con-
clusions 4, 5 and 6, and in each of them, has interfered with, re-
strained and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the said Act, as set forth in the findings of fact
above, and has engaged in and is engaging in unfair labor practices
within the meaning of Section 8, subdivision (1) of the said Act.
8. The unfair labor practices in which the respondent has engaged
and is engaging, as set forth in the preceding conclusions 4, 5, 6 and 7,
and the findings of fact above, constitute unfair labor practices af-
fecting commerce within the meaning of Section 2, subdivisions (6),
and (7) of the said Act.
ORDER
On the basis of the findings of fact and conclusions of law, and
pursuant to Section 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Atlas Bag and Burlap Company, Inc., and its officers
and agents, shall:
1. Cease and desist from in any manner interfering with, restrain-
ing or coercing its employees in the exercise of their rights to self-
organization, to form, join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
2. Cease and desist from any manner of domination or interference
with the formation or administration of th6 labor organizations
known as the "Atlas Bag and Burlap Company Employees' Union"
and the "Collective Bargaining Committee of the Atlas Bag and
Burlap Company" and from in any manner soliciting or encourag-
ing membership in such organizations and from dealing with or
recognizing such organizations as representing its employees and
from continuing th8 existence of such organizations.
3. Cease and desist from in any manner discouraging membership
in the Burlap and Cotton Bag Workers Local Union No. 2469,
affiliated with the United Textile Workers Union, by discrimination
in regard to any term or condition of employment through in any
manner offering, soliciting, entering into, continuing or enforcing or
DECISIONS AND ORDERS 307
-.attempting to enforce the individual anti-union contracts of employ-
ment with its employees set forth in the findings of fact above.
4. Cease and desist from any refusal to bargain collectively with
the Burlap and Cotton Bag Workers Local No. 2469, affiliated with
United Textile Workers Union, the exclusive representatives desig-
nated therefor by its production employees, in respect to rates of pay,
wages, hours of employment, or other conditions of employment.
5. Take the following • affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Personally inform in writing the officers of the "Atlas Bag
and Burlap Company Employees' Union" and the -members of the
"Collective Bargaining Committee of the Atlas Bag and Burlap
Company" that these organizations have been formed and admin-
istered in violation of the National Labor Relations Act as set forth
in this Decision, and that the respondent will not in any manner deal
with or recognize such organizations, and that they shall be dissolved
and cease to exist.
(b) Personally inform in writing each and every one of its
employees who has entered into the individual anti-union contract
of employment, as set forth in the findings of fact above, that such
contract constitutes a violation of the National Labor Relations Act
and that the respondent is therefore obliged to discontinue such
contract as a term or condition of employment and to desist from
in any manner to enforce or attempt to enforce such contract.
(c) Enter into negotiations in good faith with the Burlap and
Cotton Bag Workers Local Union No. 2469, affiliated with United
Textile Workers Union, designated as their exclusive representative
for the purposes of collective bargaining by its employees, as set
forth in the findings of fact above, with the object of making an
agreement covering rates of pay, wages, hours of employment and
other conditions of employment.
(d) Post notices immediately in conspicuous places in its Brooklyn
plant, on all floors thereof and near the time-clock, stating that under
the terms of and in compliance with this Order: (1) the respondent
will comply with the provisions of the National Labor Relations Act;
and that (2) the respondent's employees will not be interfered with,
restrained or coerced in the exercise of their rights to self-organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection; and that
(3) the organizations known as the "Atlas Bag and Burlap Company
Employees' Union" and the "Collective Bargaining Committee of
the Atlas Bag and Burlap Company" were organized in violation
of the National Labor Relations Act and that the respondent will no
longer recognize or deal with these organizations and that member-
308 NATIONAL LABOR RELATIONS BOARD
ship in these organizations will no longer be solicited or encouraged
by the respondent, and that these organizations shall be dissolved
and cease to exist; and that (4) the individual anti-union contracts
of employment entered into between the respondent and some of its
employees are in violation of the National Labor Relations Act and
that the respondent will no longer offer, solicit, enter into, continue,
enforce or attempt to enforce such contracts with its employees; and
that (5) the respondent will bargain with the Burlap and Bag
Workers Local Union No. 2469, affiliated with United Textile
Workers Union, exclusively as the representative of all of its produc-
tion employees;- and that (6) such notices will remain posted for a
period of 30 consecutive days from the date of such posting.