Charles Bloom, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1942

45 N.L.R.B. 1250 (N.L.R.B. 1942)

In the Matter of CHARLES BLOOM , INC. and UNITED FURNITURE
WORKERS OF AMERICA, LOCAL 45-B, C. I. O.
Case No. C-0238.-Decided December 11, 1940
Jurisdiction : drapery industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: respondent's refusal to deal with union
in settling strike held 'not violative of the Act, respondent having based its
refusal upon fact,that union did not represent a majority of employees and
having stated that it would deal with union as soon as it represented a
majority ; respondent's encouragement and assistance to non-strikers in going
through picket line maintained by minority union which had called strike,
held-not to constitute interference in the absence of evidence of interference
with the lawful activities of the strikers themselves ; respondent's individual
offers of reinstatement to strikers held not unlawful in view of : the absence
of any, coercive elements in the form or tenor of the offers, respondent's
entire course of conduct, the fact that the union did not represent a majority,
respondent's declaration to the employees that it would bargain with the
union when it, represented a majority, and the fact that the respondent was
privileged to displace the strikers;_ payment of a bonus to non-strikers held
not to constitute interference, since bonus was not offered during pendency
of strike, was not given by way of reward for not striking; respondent had
paid strikers their usual wages for the period of the strike and since the
strike interfered with production of non-strikers, the result, if no further
adjustment had been made, would be that the strikers would have been paid
more for not working than non-strikers would have earned for working.
Practice and Procedure: complaint dismissed.
Mr. Sidney Reitman, for the Board.
Mr. George J. Beldock, of New York City, for the respondent.
Mr. Harold Klein, of New York City, for the Union.
Mr. Herman J. DeKoven, of counsel to the Board.
DECISION
AND
ORDER
' STATEMENT OF THE CASE
Upon charges duly filed by United Furniture Workers of America,
Local 45-B, affiliated with the C. I. 0., herein called the Union,
the National Labor Relations Board, herein called the Board,
45 N. L. R. B., No. 172.
1250
CHARLES BLOOM, INC. 1251
by the Regional Director for the Second Region ( New York City), is-
sued its complaint , dated February 5, 1942, against Charles Bloom,
.Inc., New York City, 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) and Section
2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint , together with notice of hear-
ing thereon , were duly served upon the respondent and the Union.
In respect to the unfair labor practices , the complaint alleged in
substance that the respondent : ( 1) vilified , disparaged , and expressed
disapproval of the Union; (2) interrogated its employees concern-
ing their union affiliations ; ( 3) urged, persuaded , threatened, and,
warned its employees to refrain from assisting , becoming members of,
or remaining members of the Union ; and (4 ) by the foregoing acts
interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. The respondent
filed an answer in which it 'denied that it had engaged in any unfair
labor practices.
Pursuant to notice, a hearing was held in New York City on May
21 and 25, 1942, before Walter Wilbur, the Trial Examiner duly desig-
nated by the Chief Trial Examiner . The Board , the respondent,
and the Union were represented and participated in the hearing.
Full opportunity to be heard , to examinee and cross -examine witnesses,
and to- introduce evidence bearing upon the issues was afforded all
parties. At the conclusion of the Board's case, and again at the close
of the hearing , the respondent moved to dismiss the complaint. The
Trial Examiner reserved ruling thereon. At the close of the hearing,
counsel for the Board moved that the complaint be conformed to the
proof, and also moved that the complaint be amended by striking
therefrom the' allegation that the respondent interrogated its em-
ployees concerning their union aflilititions . These motions were
granted. Various rulings were made by the Trial Examiner during
the course of the hearing on other motions and on objections to the
admission of evidence . The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
On June 23 , 1942, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon the parties, in which he
found that the respondent had not engaged in unfair labor practices
as alleged in the complaint , and recommended that the complaint be
dismissed . Thereafter , the Union filed exceptions to the Intermediate
Report. No request for oral argument was made by any of the parties.
The Board has considered the exceptions filed by the Union, and
1252 DECISIONS OF •1VATIONAL' LABOR RELATIONS BOARD
finds them to be without merit insofar as they ) are inconsistent with
the findings, conclusions, and order set forth below.
Upon the entire record in -the case, the Board makes the following :
FINDINGS OF FACT
I.. THE BUSINESS OF THE RESPONDENT
Charles Bloom, Inc.,'is a New York corporation having its principal
office and place of business in New York City, where it is engaged in
the manufacture, conversion, sale, and distribution of drapery fabrics,
draperies, accessories, and related products.
During the • last 6 months of 1941, the respondent purchased raw
materials valued in excess of $50,000, approximately 65 percent of
which was shipped from,points outside the State of New York.
During the same period, the respondent sold finished products valued
in excess of $50,000, approximately 65 percent of which was shipped to
points outside the State of New York. The respondent admits that
it is engaged in commerce within the meaning of the Act.'
II. THE ' ORGANIZATION INVOLVED
United Furniture Workers of America, Local 45-B, is a labor
organization affiliated with the Congress of Industrial Organiza-
tions, admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
In the early part of September 1941, the Union commenced to
organize the respondent's employees. By October 16, 1941, it had
obtained membership-application cards from 30 out, of a total of
approximately 187 employees, exclusive of salesmen and the execu-
tive force, in the respondent's employ. At a union meeting held on
October 16, a vote was taken authorizing a strike, to commence the
following morning, for the purpose of securing a wage increase.
On the morning of October 17, Edward Warren and Chlorina
Michelson, organizers for the Union, and Harold Klein, business
manager of the Union, arrived at the plant before the opening hour
to organize a picket line and to persuade the employees not to enter
the plant. There is no evidence that there was any disorder either
at the beginning of the strike or at any time during its progress.
There was, however, as Klein testified, "a great deal of hustle and
bustle" in front of the plant as the employees began to assemble and
"many of them were hesitant about going in to work."
I The findings in this section are based upon a stipulation entered into between the
respondent and counsel for the Board.
• CHARLES BLOOM., INC. 1253
Except for the 30 employees who participated in, the strike vote,
the strike came as a complete surprise to both the respondent's em-
ployees and its officials. The Union had formulated no demands
and given no notice of an intention to strike. As the supervisory
personnel reported for work, they found a picket line established.
Only 1 of the supervisory staff, however, lingered outside the building
or took any direct action at this time with reference to the strike.
Bob J. Marks, plant manager, reached the plant shortly before the
opening hour and observed that a picket line had been established
and that the union officials were circulating among the employees as
they came to work urging them to support the strike. Marks asked
some of the striking employees what was going on and, was told that
they were striking for higher wages. He thereupon went about
among the employees who were hesitant about going through the
picket line and told them not to be afraid and that they had a right
to go in if they wanted to. Marks took at least 1 girl, who still
appeared timid, by .the arm and personally escorted her into .the
plant.' Shortly after the usual opening hour, most of the employees
went into the plant and reported for work.
Shortly thereafter, Charles Bloom, the president of the respondent,
arrived at the plant and learned from the placards carried by the
pickets that a strike was in progress. He immediately requested a
report from his department heads concerning the number of em-
ployees who had not reported for work and was advised that 30 were
absent.' Bloom decided to let events take their course. Later that
same morning, Klein telephoned Bloom anti asked if he would meet
with a committee of the strikers and with representatives of the
Union to discuss the employees' grievances. Bloom declined on the
2 The above findings as to Marks ' activities are based in the main upon his own testi-
mony. According to warren , Marks went much further in his exhortations to the
employees warren testified that Marks raised his voice to the girls and told them they
should go to work and have nothing to do with the Union; that he took one girl by the
arm and suggested that she go upstairs and that the, others would follow , that warren
remonstrated that Marks had no right to tell the girls whether they should , join the
Union or not , that the Union was not forcing the employees to stay out , and that they
had a perfect right to go in ; and that Marks then stated , "All right, girls , you have a
perfect right to go in, and if you don ' t go in you can stay out' and further told them
"to go back now or you don't go back at all " Klein testified that lie saw Marks "standing
in front of the plant and urging people to go in to work , and approaching people individ-
ually and putting his hands on girls ' arms in an attempt to encourage them to go in to
work." He recalled that "an aigument took place between Mr. Warren of the Union and
Mr. Marks ," and that Marks went across the street to the park to speak to some girls,
but he testified that he had not heard Marks tell the employees to stay out of the Union
or threaten , them in anyway. The Trial Examiner , did not, nor do we , credit warren's
testimony as to Marks' conduct so far as this testimony , goes beyond ' the findings set forth
in the text • f . ,
The record discloses that when the strike commenced , ithe Union signed, up a few
employees in addition to,the 30 who had joined the Union prior to.the strike, and that
from 30 to 45 employees participated in the strike . The Union at no time represented
a majority of the employees in an appropriate bargaining unit.
1254 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD'
ground that the Union did not represent a majority' of the employees.4
During the strike, which continued until October 22, members of
the supervisory staff approached the strikers on several occasions
and invited them to return to work.5
On the afternoon of October 20, Sam Slackman, an employee who
had joined the Union on the morning of the strike and had thereafter
remained away from work, but who had become convinced of the
futility 'of the strike,6 called up Morris Greenstein, one of the company
officials, and told him that he wanted to come back to work and that he
thought most of the employees on strike ' felt the same way. Green-
4Mein testified that "Mr. Bloom answered that he had, no desire and would not meet
with us under any circumstances " Bloom testified ' My operator told me there was a
gentleman on the wire from the union , a Mr Klein , and I said, 'Put him on What my
exact words were , I do not know , but I would say offhand he asked me , would I further
discuss this with him, and I said 'no ' I was not convinced that the union represented
a majority of the workers , and until such time I would rather not have any conversation
with him whatsoever . I said , 'Please excuse me, ' and I hung up the telephone " Upon
the basis of the entice record, we credit , as did the Trial Examiner , Bloom 's testimony
as giving the more accurate account of this conversation
5 Marks , the plant manager, asked the strikers on several occasions why they did not
return to work and told them that , "anything you want to say, you can always say to
me." Warren testified that lie lieaid Muiks tell Victoria Roselli, one of the strikers, that
she should return to work and that he would give her a wage increase . Roselli testified
that Marks said he was "shocked ," requested her to return to work, asked her to state
how much of a wage increase she wanted , and told her that she would receive it if she
deserved it. We find, as did the Trial Examiner , that this conversation took place
substantially as testified to by Roselli.
Marie Volpe , a forelady, told some of the strikers that she was surprised that they
stiuck "without saying anything ," that she thought they were being "veiy silly," that
they ought to return to work and speak to Bloom , and that if they returned they would
receive a wage increase if they deserved it On another occasion , Volpe told one of the
strikers that she was "shocked" and asked her why she had not spoken' to Volpe first.
Also, Warren testified that he heard Volpe tell Victoria Roselli that she was vely foolish
to have anything to do with the Union . Both Roselli and Volpe denied this , and it is
not otherwise corroborated . The Trial Examiner did not , nor do we, credit Wairen's
testimony that Volpe ' advised Roselli to have nothing to do with , the Union.
One Paitchell , a supervisory employee , said to one of the pickets who worked under his
supervision : "You better come upstairs while there is time yet . It is all right this time.
Come on up "
Morris Greenstein , the respondent ' s second vice president , told Sam Slackman, one of
the strikers who was later instrumental in getting a group of the strikers to confer with
Bloom , that he did not understand "why the boys went out, " and that he would like to
have Slackrnan return to work but that "he wanted them to decide themselves ." Green-
stein also told the strikers that they ought to come back and that the respondent would
satisfy any just complaints which they might have. Irving Berger testified that on one
occasion Greenstein told him and a few other strikers that they were "a bunch of damn
fools" for going out on strike , that they should have come to him with their demands,
that under no circumstances would he give them a wage increase , that the respondent
could not afford it, and that he would refuse to negotiate with the Union . Greenstein
denied that such a conversation occurred , and Berger 's testimony is not corroborated.
Upon the ,basis of the entire record , we credit , as did the Trial -Examiner , only that portion
of Berger's testimony which indicates that Greenstein - criticized, the group for having
gone on strike without a prior presentation of demands.
6 Slackman testified ': ". . . after all, I had been getting everything I wanted, and I
had been there five.years , and I had no kick about the firm because I had been getting
my vacation and they had been treating me all right, and it was just a matter of money
and I thought, 'Well, if I did ask for it , I probably would have gotten It.'"
CHARLES BLOOM, INC. -1255
stein told him to call him again when the strikers had made up their
minds. .
On October 21, a group of strikers employed on the ninth floor
decided during the lunch hour that they would go into the plant to
see Bloom. They first approached Foreman John Chiaravalle, and
Chiaravalle asked Bloom if he would meet with them. Bloom at once
arranged a conference with them on the ninth floor. Bloom--asked
them what the trouble was and was told that they wanted. higher
wages. Bloom said that he would make no promises, that he would
investigate each case and make such adjustments as he thought justi-
fied, and that it was up to the strikers to decide whether they wanted
to return to work on that basis. The group discussed the matter
among themselves and decided to return to work. When their deci-
sion was communicated to Bloom, he expressed his gratification and
told them that he would pay them for the time they were on strike.'
Meanwhile, Slackman had been talking to other'striking employees
and readily pursuaded them to make overtures to the management
for a settlement of the strike." About an hour after Bloom's con-
ference with the ninth floor group, Slackman telephoned Greenstein
and told him that the other strikers wished to confer with Bloom.
Bloom consented at once and a meeting was held on the sixth floor
'T With respect to this interview , Bloom testified : "I was notified there was a delegation
of my. boys who would like to talk to me , and I said I would be delighted to. I arranged
for a conference in a room outside , which we have, and there were about 12 or 13 boys
who came in to talk to me, and the first thing I said , ' I am awfully glad to see all you
fellows. Mind you, I have nothing against you. You have every right to do what you
did, and I have every right to do what I did. Now, what is your problem ? If you will
let me know your problems , and I can satisfy them, all right, but I want to ask each
one individually what their problem is. I have made a definite statement that I will
not make any decision as to what I will do at the present time, but to listen to your
problems ' . . When we got all through with this conference I told them , 'Now, you
discuss it between yourselves . I have made no promises .' And I walked out and went
to something else, as best I can recollect . . . They asked me to come back , and they
gave me their decision , and I was so pleased . . . I made the remark, 'Boys , you have
all been so nice and decent , and you have been out three or four days, and I am going
to pay you for all the time which you have lost' . . . [Their membership in the Union]
was never discussed at any time . . . The only time I mentioned the Union was I
told them they had a right to join a union, or they had a right to strike, but I, as an
employer, did not have to recognize the union until they represented a majority. I made
the statement , which was in one of the circulars of the union, that when they had 51
percent of our employees , I would gladly give them a contract , because then I would
be,very glad to approach them. " John Chiaravalle testified : "Mr. Bloom said, 'What is
the trouble , boys?' . . . and one or two boys came out and told him, 'It is a question
of wages. We are not making enough, and we thought by going on strike we could
get more money ' Then Mr. Bloom told them, 'Well , I cannot promise you anything.
I cannot tell you what to do. You have to use your own discretion . I am not promising
you anything, but 'I - will look into every case individually and see what I can do.' "
Ernest Felice , the only other witness who testified with respect to this conference , testified
substantially to the same effect.
In this connection , Blackman testified : ""Well, they were in the same state of mind
that I was, and they wanted to come back , and it was only a matter of money, and I told
them probably if we spoke to Mr. Bloom, Mr. Bloom would think it over, and I guess he
would give us a raise, and we would come backto work."
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the plant. This conference was similar to the one held on the
ninth floor, and this group also decided to return to Work.'
On the following morning, October 22, all the strikers reported
for work and 'were reinstated.
Shortly before the close of work on October 23, Bloom• called a
general meeting of the employees. He expressed his gratification
that the- strike was over and stated that he wanted the incident to
leave no hard feelings and that so far as he was concerned the matter
was closed. He told them that he was making no promises as to
wage increases-but that he proposed to review the salaries and piece
-rates on an individual-basis and make such adjustments as were de-
served. He also stated that the employees had the right to join the
Union and to strike, but that he had the right not to recognize or ne-
gotiate with the Union until it represented a majority, and that when
it did he would enter into 'a contract with it. He further told them
that he would pay the strikers for the time they were out, and also
that, since the employees who had worked had suffered some loss
because of the interruption in production and general disturbance
caused by the strike,10 he would, in fairness to them and in order to
avoid ill feeling between them and the strikers, pay, them something
in addition to theii actual earnings for the period of the strike. ,
Thereafter, the strikers were paid for the time they were out.
Those employed as piece workers were paid on the basis of their
average earnings during a period preceding the strike, and those
employed on a time basis received their regular compensation. The
non-strikers, almost all of whom were employed on apiece-work basis,
were, each paid $5'in addition to their `actual earnings for the period
of the strike. Bloom testified that he did not calculate the actual loss
9 While the testimony as to what occurred at this second conference is in some respects
conflicting, we find, as did the Trial Examiner, that the major emphasis in the discussion
between Bloom and the stiiking employees was on the wage demands of the employees,
and that any incidental reference Bloom may have made to the Union was by way of
introduction and in explanation of his refusal to meet with the union representative.
Irving Berger's testimony that Bloom insisted that "be would not negotiate with the
Union" and that the employees must come back to work' "without the Union" must be
considered' in connection with Bloom's further statement at this conference that the
Union did not represent a majority of the employees The testimony of Catherine Carroll,
as reported, reads as follows "[Bloom] asked or told the girls that if they would come
back to work under the conditions, that we don't sign up with the union, [Bloom] would
go through our records and see what we deserved . . . and . . . would give it to_us"
(underlmeation supplied)., It is apparent from Carroll's entire testimony and the record
as'"a whole, and we find, as did the Trial Examiner, that "«e" is a typographical error
and should read "he " 'Carroll's testimony conforms to Berger's and is to be similarly
interpieted. The key'to Bloom's attitude toward the strike and the strikers seems to be
found in his initial inquiry as to bow many workers were on strike and his consequent
assumption, which the record confirms, that the Union represented a minority of the
respondent's employees, together with his clear recognition, that the strikers were within
their rights in striking notwithstanding their minority position.
30 There is'uncohtradicted testimony, which we credit, that the strike.afl'ected production
in the plant. '
CHARLES, BLOOM, INC. 1257
to the non-strikers because of the strike, and that he believed $5 was
a fair sum as compensation for such loss." Also, shortly after the
strike terminated, the respondent put into' effect a general 10-percent
wage increase for all. piece workers and also made.a number of ad-
justments in individual, salaries and rates.12
Conclusions
There is no credible testimony to support the allegations of the
'complaint that the respondent "vilified, disparaged, or expressed dis-
approval of the Union" or "threatened and warned its employees to
refrain from assisting, becoming members of , or remaining members
of the Union," nor any testimony that the respondent "urged or per-
suaded" its employees to take any action,of any sort relative to the
Union. '
It is clear from the record that Bloom, in .his telephone conversa-
tion with Klein, the business manager of the Union, and in his talks
with his employees, predicated his refusal to deal with the Union in
settlingthe strike solely upon the admitted fact that the Union was in
a- minority position, and made clear- to the employees, that the re-
spondent was willing to deal with the Union as soon as,it, represented
a majority.13, Under these circumstances it is clear that the respond-
ent's refusal to negotiate with the representatives of the employees
for the purpose of discussing a settlement of the strike did not con-
stitute interference with its employees in the exercise of the rights
guaranteed in Section 7 of the Act 14
The-evidence is uncontroverted that on the morning of October 17
the respondent, by.. the -activities, of, Marks,, its plant. manager,' en-
ss Except for the testimony of one of the non-striking piece workers that her average
weeklyr-earnings' , pilor ''to the strike were $25, and Bloom 's general testimony that the
earnings during -the strike of a given non-striking piece worker may have been reduced
from $5 or $4 50 to $4 per day, the record does not disclose the average earnings of the
non-striking employees.
These individual wage adjustments were made without distinction between strikers
and non-strikers.
'3 That there was no ambiguity in the respondent 's statements in this respect is indi-
cated both by the testimony of Bloom and a number of other witnesses and by a significant
collateral circumstance . On cross-examination by counsel for the respondent, Klein
identified respondent 's Exhibit 3 as a circular issued by the Union after the employees
had gone back to, work The exhibit was not introduced in evidence , but its contents
were in part established by the following testimony elicited on cross-examination from
warren
- ;',Q. Does this language in here [respondent 's exhibit 3] mean anything to you, and do
.you recall having made this statement at any time : 'Mr. Bloom stated that when 51 per-
cent joined the Union , he would sign a contract'? - -
"A. Yes, I remember that statement. A number of the workers told me that Mr. Bloom
had made that statement on a number of occasions It appears in some of the
ithda'vlts." '' '
.
11 1
14 Matter of The New York, Trines, Compan t1, a corporation and Newspaper Guild of
New York, 26 N. L. R. B 1094,'1104'-1105. '
11 1
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
couraged and to some extent assisted the non-striking employees in
going through the picket line. In the absence of evidence of inter-
ference with the lawful activities of the strikers themselves, we do not
believe that the respondent's acts in this respect' constituted interfer-
ence with its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.15
Similarly, the respondent's individual offers of reinstatement to the
strikers were not unlawful under the circumstances here disclosed.
We have found nothing coercive in the form or tenor of such offers.
This is- particularly true since the respondent made plain to the em-
ployees its willingness to bargain collectively with the Union when it
achieved the status of majority representative., In the absence of any
coercive element either in the offers or in the respondent's entire course
of conduct, and in the absence of a majority representative, the respond-
ent violated no duty under the Act in offering individual reinstate-
ment in the manner hereinabove described to employees whom, he was
privileged to displace, and we so find Ye
Nor do we find any merit in the contention that the payment of a
bonus to the employees who did not participate in the strike operated as
a mode of interference with the right of the employees to engage in
concerted activities by rewarding the" employees who refrained from
such action. The bonus was not offered during the pendency of the
strike, nor was it given the non-strikers by way of reward. By the
voluntary act of the employer, the strikers were paid their usual wages
'for the period of the strike. Since the strike to some extent interfered
with the normal production of the non-striking employees, the result,
if no further adjustment had been made, would have been that the
strikers would have been paid more for not working than the non-
strikers would have earned by working. We see no reason to question
the good faith of the respondent in adopting the rough basis of equali-
zation which it employed. We find, as did the Trial Examiner, that
the transaction did not amount to interference with the employees in
the exercise of the rights guaranteed in Section 7 of