Elizabeth Arden, Inc.

National Labor Relations Board - Board Decisions

Dec 1, 1942

45 N.L.R.B. 936 (N.L.R.B. 1942)

In the Matter Of ELIZABETH ARDEN, INC. and COSMETIC WORKERS
UNION, LOCAL 22806, A. F. of L.
Case No. C-x'295. Decided December 1, 1942 •
Jurisdiction : cosmetics'manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coeicron: anti-union statements; interrogation of
employees as to union affiliation ; encouragement of membership in "inside"
unions; discouragement of membership in "outside" union.
Company-Donanated Union: first organization: participation and assistance of
officers and supervisory employees in initiation, formation, and administration
thereof ; election of supervisory employees as officers ; immediate signing of
collective bargaining agreement by temporary committee prior to organization
of "inside" union; disestablishin ent consented to-successor organization : con-
tinuance of participation and assistance by supervisory employees in initiation
and formation, despite consent to disestablish prior organization ; similarity
of officers, constitution and bylaws, attorney, minutebook, bank account, man-
ner and place of meetings; provisions of constitution and bylaws with respect
to qualifications for office subjecting organization to company domination and
control ; recognition of successor organization with right to administer unex-
pired contract with prior organization. although no demand or proof of majority
status -
Remedial Orders : cease and desist unfair labor practices ; employer ordered to
withhold recognition from prior dominated organization in the event of revival,
to withdraw recognition from and disestablish successor organization, and to
cease and desist from giving effect to any contract with successoro rganization
Mr. Sidney Reitman, for the Board.
Townley, Updike c0 Carter, by Mr. Joseph B. Duggan, of New York
City, for the respondent.
Mr. Edward H. Moglin, of New York City, for the Union.
Mr. Max E. Halpern, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge duly filed on May 25, 1942, by
Cosmetic Workers Union, Local 22806, A. F. of L., herein called the
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Second Region (New York City)
45 N. L. R. B., No. 138.
936
E'LIZABET'H ARD'EN, INC. 937
issued its complaint, dated July 10, 1942, against Elizabeth Arden,
Inc., herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (2) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act.. Copies of the complaint, accompanied by notice of
hearing, were duly served upon the respondent, the Union, and Union
of Factory Employees of Elizabeth Arden, Inc.,' herein called the
Independent.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent : (1) in or about October 1937 domi-
nlited and interfered with the formation and administration of Eliza-
beth Arden Employees Association,2 herein called the Association, and
contributed support thereto, and thereafter dominated and interfered
with the formation and administration of the. Independent, the same
organization as, or the successor to, the Association, and contributed
support thereto; (2) since October 1937, has interrogated its,em-
ployees concerning their union affiliations, has urged, persuaded, and
warned its employees to refrain from joining or assisting the Union,
and to join and assist the Association and the Independent, and has
expressed approval of the Association and the Independent and dis-
approval of the Union; (3) on or about February 14, 1941, entered
into an invalid collective bargaining agreement with the Independent;
and (4) by the foregoing acts has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
On July 31, 1942, the respondent filed an answer denying that it
had engaged in unfair labor practices and that the Association and
the Independent comprise a single labor organization or that the
Independent is the successor of the Association ; alleging-affirmatively
that the Association was disestablished in 1939; and admitting the
execution of the contract with the Independent, dated February 14,
1941.
Pursuant to notice, a hearing was held on July 27, 28, 30, and 31,
1942, at New York City, before Howard Myers, 'the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the re-
spondent, and the Union were represented by counsel and the Inde-
pendent by Ia representative; all participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
'Also referred to in the record as Union of Factoiy Employees of Elizabeth Arden
Sales Corporation, Independent Union of Factory Employees of Elizabeth Arden Inc. &
Sales Corp, and Independent Factory Workers Union of Elizabeth Arden, Inc.
2 The Association is variously referred to in the record as Elizabeth Arden Employees
Union, Factory Employees' Association of Elizabeth Arden Inc., and Factory Employees'
Association-of Elizabeth Arden Sales Corporation.
Cl
938 DECISIONS OF NATIONALLABOR RELATIONS BOARD
to introduce evidence bearing upon the issues was afforded all parties.
During the course of the hearing counsel for the respondent objected
to the admission of evidence pertaining to events which occured prior
to the disestablishment of the Association in May 1939. The Trial
Examiner overruled these objections.' At the conclusion of the
Board's case, counsel for the respondent moved to dismiss the com-
plaint. The motion was denied. At the conclusion of the hearing
counsel for the respondent renewed the motion to dismiss -the,com-
plaint. The Trial Examiner reserved ruling on this motion but denied
the motion in his Intermediate Report. At the close of the hearing,
counsel for the Board moved to conform the pleadings to the proof.
The motion was granted without objection. The Board has reviewed-
these and other rulings of the Trial Examiner on motions and on'
objections to the admission of evidence, and finds that no prejudicial,
errors were committed: The rulings are hereby affirmed. At the
conclusion of the hearing, counsel for the Board and for the respond-
ent participated in oral argument before the Trial Examiner. - Sub-
sequent to the hearing, the parties entered into a stipulation correcting
certain , errors in the record. The stipulation is hereby made a part
of the record and the corrections are hereby allowed in conformity
with the stipulation.
On August 20, 1942, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent, the
Union, and the Independent, in which he found that the respondent
had engaged in and was engaging in unfair labor practices, within the
meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the
Act, and recommended that the respondent cease and desist therefrom
and take certain affirmative action deemed necessary to effectuate the
policies of the Act. On September 25, 1942, the respondent filed ex-
ceptions to the Intermediate Report and a brief in support thereof.
Pursuant to notice, a hearing for the purpose of oral argument was-
held before the Board at Washington, D. C., on October 8, 1942. The
respondent and the Union were represented by counsel and partic-
ipated in the oral argument . The Board has considered the respond-
3 The basis of the respondent 's objections was that the posting of a notice by the
respondent disestablishing the Association in May 1939, at the request of a Board repre-
sentative , constituted a settlement of the charges then pending against the respondent.
No such agreement by Board representatn es was established . Moreover, even if such an
agreement were established, it is the Board 's piactice not to give effect to such a settle-
ment, where , as here, the employer thereafter continues to engage in unfair labor practices.
See Matter of A Sartorsus & Co., and United Mine Workers of America, District #50,
Local 12090, 40 N. L it. B 107; Matter of Sun Shipbuilding and Dry Dock Co. and
Industrial Union of Marine and Shipbuilding Workers of America, 38 N. L R B. 234;
Matter of Wicktbire Brothers and Amalgamated Assn. of Iron, Steel & Tin Workers of
North Amcria, Lodge #1985, through S. W 0 C., affiliated math the C. I. C, 16 N L R. B.
316; Matter of Hope Webbing Company and Temtale Workei s Organizing Committee of
the C I O., Local No. 14, 14 N. L R. B 55.
ELIZABETH ARDEN, INC. 939
ent's exceptions and brief, and insofar as the exceptions are incon-
sistent with the findings, conclusions, and order set forth below, finds
them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Elizabeth Arden, Inc., a New York corporation, maintains its
principal office and place of business at 681 Fifth Avenue, New York
City. The respondent has a factory 4 at 38-09 43rd Street, Long
Island City, New York, and also operates salons in various cities
throughout the United States. The respondent is engaged in the
manufacture, sale, and distribution of lipsticks, creams, powders, per-
fumes, cosmetics, and related products. During the first 6 months of
1942, the respondent purchased raw materials valued at more than
$150,000, approximately 60 percent of which was shipped to its factory
from points outside the State of New York. - During the same period
the respondent sold finished products of the value of more than
$300,000, approximately 80 percent of which was sold and delivered
to points outside the State of New York. The period above described
is a normal period in the course and operation of the respondent's
business. The respondent admits that it is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Cosmetic Workers Union, Local 22806, affiliated with the American
Federation of Labor, is a labor organization admitting to membership
employees of the respondent.
Union of Factory Employees of Elizabeth Arden, Inc., is, and
Elizabeth Arden Employees Association was, an unaffiliated labor
organization admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the Association; interference,
restraint, and coercion
About October 1937 the Cosmetic; Soap & Perfumery Workers
Union, affiliated with the American Federation of Labor, herein called
the A. F. of L., started to organize the respondent's factory employees.
On Sunday, October 10, Frances O'Leary, the - respondent's secre-
tary, invited five employees -1 to her hotel suite. There, O'Leary, in
* This proceeding is concerned exclusively with the factory employees.
5 William Bradley, George Considine , William Moran, Tom Walsh, Arthur Nolan.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the presence of Florence Delaney,- the respondent's vice president aid
treasurer, questioned these employees about their union affiliation
and asked them whether something could be done to `rid the plant of
the A. F. of L. Despite the fact that William Bradley, one of the five
employees present, told O'Leary and Delaney that most of the em-
ployees had joined the A. F. of L., Delaney stated that the employees
should form their own association and that, if they did so, the respond-
ent would grant- them bonuses,- sick benefits, and' any -help, the, em-
ployees might need. Before the meeting concluded it was agreed
by those present that the suggestion of forming an unaffiliated union
would be presented to the employees at a meeting to be held in the
factory the following day."
At about 11 a. in. of the next day, October 11, the respondent's
supervisors ordered all the factory employees to assemble on the
third floor of the factory. There in the presence of the supervisors
and Carl F. Peehl, the factory manager, the employees were told by
Delaney that they should not join the A. F. of L., but should have
their "own little association, and keep it all among" themselves.
O'Leary promised the employees that if they formed their own associ-
ation, they would receive pay increases and sick benefits, and that if
any of the employees got into any trouble the respondent would assist
them. After O'Leary and Delaney finished speaking, blank slips of
paper were passed out to the employees, on which they were instructed
to signify whether they wanted the A. F. of L. or an- unaffiliated
organization to represent them. The meeting concluded with the an-
nouncement that a majority of the employees desired to form their
own organization. Later that day, during working hours, blank bal-
lots were handed to the employees by their supervisors, on which the
employees were requested to select "committeemen" or representatives
from each of the six departments of the factory to consider the forma-
tion of an unaffiliated organization.7
In the afternoon of the same day, Edward Martin, foreman of
the, stock control department," and employees George Considine and
9 The above findings, and except where otherwise indicated, all findings concerning the
respondent's participation in the formation and administration of the Association are
based upon uncontradicted testimony and documentary evidence
7 Seven representatives were selected, one from each of five departments, and two from
the powder department
9 Although at the hearing the respondent contended that in 1937 Martin was not a
supervisory employee, it did not urge this contention in its brief, nor did it except to the
finding of the Trial Examiner that Martin was a supervisory employee in 1937 and there-
after. The evidence supports the conclusion of the Thal Examiner. Board witnesses
Bradley and McCreesh testified that Martin was "production manager" in charge of the
stock control department, that he distributed the production sheets containing production
or merchandise requests among the various foremen, from which the foremen gave their
orders to the employees. Albert Peron, formerly employed as a messenger in the respond-
ent's general offices, testified that he frequently delivered reports and inter-office commu-
nications addressed to -about seven foremen, including Martin. ' Madeline 'Bressler, the
former secretary of the Association and of the' Independent, testified that, prior to Mar-
tin's resignation as president of the Association , he was "her boss " She further testified
ELIZABETH ARDEN, INC. 941
'Frank Reilly left the factory during working hours and went to'the
offices of an attorney named Francis Horan. Horan advised them to
organize their union "like a regular social-club, have an election of
officers and draw up a constitution and bylaws." Martin, Considine,
and Reilly then returned to the factory and went directly to Peehl's
private office where they met Peehl, O'Leary, and Delaney. There
Peehi asked Martin, "How did you make out?" and Martin,replied,
"Everything will be all right now." After a short discussion regard-
il>;g a proposed general wage increase, Martin, Considine, and Reilly
left Peehl's office and returned to their respective departments.
During working hours on the morning of October 12, Martin, Con-
sidine, and an employee named Bernard McCreesh,9 left the factory
and went to Horan's office where they discussed the terms of a proposed
contract between the contemplated 'association and the respondent."O
After about an hour's discussion, Horan handed Martin an envelope
containing a form of "Membership Application for Elizabeth Arden
Employees Union." This application form contained provision for
the appointment of a committee to negotiate a collective bargaining
agreement with the respondent and a summary of the proposals'which
the committee was to present to the respondent. Upon leaving
Horan 's'office; Considine returned to the factory and Martin and Mc-
Creesh proceeded to the Fiftli Avenue Letter Shop, Inc., a firm which
had done the respondent's printing and mimeographing for 20 years,
and ordered mimeographed membership applications. Upon com-
pletion of the membership blanks, Martin and McCreesh returned to
the factory and Martin went directly to Peehl's office with the mimeo-
graphed membership applications. Later that day the employees
were again assembled by the supervisors, during working hours, on
the third floor of the factory. Peehi, O'Leary, Delaney, and other
supervisors attended this meeting. Florence N. Lewis," the respond-
ent's president, appeared and stated that she always had been very
good to the employees,-and that she could not see why the employees
that she regarded Martin as a supervisor and that whenever she wanted to use one of
the respondent 's typewriters for the purpose of writing up the Association 's minutes, she
would ask Peehi and in his absence, Martin , for'permission to use the typewriter while
Martin did not specifically deny that he had supervisory duties in 1937, he testified that
he resigned as president of the Association on February 28, 1939, because Peehi would
not "confer any powers of supervision" upon him, unless he did so . Martin 's reason for
resigning from the Association is not convincing , since the Association 's constitution
permitted any employee below the rank of manager to be a member . We find , as did the
Trial Examiner , that during all the time material herein , Martin ' was a supervisory
employee and was so regarded by the respondent 's employees.
s Reilly refused to accompany Martin and Considine again. McCreesh was invited by
Considine to replace Reilly. -
"The above -named employees were paid their full salary for this day. Moreover, it is
undisputed that the employees lost no pay for the time spent at the several meetings held
in the plant and for various absences from the ,plant,on Association ,business during work-a-
ing hours in October 1937, as above discussed.
11 Also referred to in the record as "Miss Arden."
942 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
needed any union in the factory at all. When Walter Scheffler, an
employee, replied that a certain group was in favor of the A. F. of L.,
Lewis became angry and left the meeting. Considine then presided.
Mimeographed copies of the membership application, which was a
comparatively lengthy document, wei e then distributed among the
employees . However, these individual membership applications were
not signed by the employees who were present at the meeting. Instead,
Considine instructed them, as they left the meeting, to sign a. short
statement 12 which was attached to one of the membership applica-
tions, if they desired "to join, the company union." This statement
read as follows :
The undersigned employees of Elizabeth Arden, Inc., having
joined the Elizabeth Arden Employees Union, hereby appoint
the Elizabeth Arden Employees' Union, as our sole representa-
tive to bargain collectively with our Employer and enpower
[sic] said Elizabeth Arden Employees' Union to negotiate and
enter into our behalf [sic] a contract with Elizabeth Arden, Inc.,
regarding wages, hours and conditions of employment. For the
above purposes, the undersigned members of the Elizabeth Arden
Employees' Union have elected a bargaining committee consist-
ing of
William Bradley
Phoebe Stockman
Eugene Martin
Margaret Dittmar
Harry Rodriguez.
Seymour Fast
Louise Vynn
a majority of whom have complete powers to bind ourselves and
the Elizabeth Arden Employees' Union in any negotiations and
in any contract.'-'
On October 14 the employees met after working hours in the
shipping department and authorized the committee to negotiate a
contract with the respondent. The next day, October 15, during
working hours, the committee met with Factory Manager Peehl in
his office and was instructed to be present that evening at the office
bf the attorneys for the respondent for the purpose of negotiating
1a The record does not disclose the origin of this statement or how many employees
signed it Counsel for the Boaid stated that the original statement bearing signatures,
together with other documents of the Association had been lost , as a result of which a
copy pieviously made by a Board agent was introduced in evidence, after the respondent's
withdrawal of objection thereto. Although it was testified that the statement was
signed at the October 12 meeting , it bears the date of October 14
13 This was the comnultee chosen by theemployees on October 11.
ELIZABETH ARDEN, INC. 943
a contract. That evening the committee met at the office of the
respondent's attorneys where Carter, one of its attorneys, Horan,
representing the committee, Peehl, and, a Mr. Davis, who was then
the respondent's general manager, were present. A contract which
had been prepared prior to the committee's arrival, was then sub-
mitted to it for the first time, a;nd was forthwith signed by all of the
members of the committee.
On October 20, Margaret Dittmar,14 one of the committee members,
during working hours and in the factory, handed Bradley some
postal cards, which she requested him to distribute for signature by
all the employees who had become members of the A. F. of L. The
cards, which were addressed to the A. F. of L., read as follows :
"Please be advised of , my withdrawal from your Association."
Bradley' testified that he distributed the cards, thereafter collected
them signed by the employees and returned them to Dittmar.
Pursuant to a notice posted in the plant, the employees met at a
public hall near the factory on October 26 and elected the officers of
the Association for the first year. Foreman Martin became the Asso-
ciation's first president, Frank Gibbons," John Tully, and Dorothy
Horsting were elected treasurer, vice president, and secretary, re-
spectively. The meeting concluded after the membership ratified the
contract which had been previously executed by the committee.
In November Martin and Tully retained James V. Connelly as at-
torney for the Association and to prepare its constitution and by-
laws.16 At a regular meeting of the Association held on December 9,
the- constitution and bylaws were unanimously adopted. • Under the
provisions of the constitution, any person in the respondent's employ
except supervisory employees of the status of manager, were eligible
to membership and to be elected to the council committee.
Thereafter the Association held. meetings at infrequent intervals,
although, regular meetings were required by the constitution to be
held monthly. As early as February 1938, the minutes indicate, at-
tendance at meetings had begun to drop off and suggestions were
discussed to penalize members for lack of attendance. Except for
14 According to Peron ' s uncontiadicted testimony , Dittmar, Martin , Rawlins, Aponte,
and Rochford were among the foremen or foreladies of the returned goods, stock control,
powder, creams , and shipping departments, respectively , to whom Peron delivered reports
15 Employees Reilly and McCreesh described Gibbons as assistant foreman of the shipping
department, Reilly testifying that Gibbons ' specific duties were to assist Foreman Roch-
ford by distributing the work, giving instructions , and handling the department's time
cards and overtime , and to act as foreman in Rochford 's absence In accordance with the
finding of the Trial Examiner , to which the respondent did not except , we find that Gib-
bons ivas . a supervisory employee and that his activities in the Associ a tion are attributable
to the respondent. ,
11 The constitution and bylaws . were later mimeographed by the Fifth Avenue Letter11
Shop i Inc , mentioned above , -,which rendered a bill for this sei', ice to the respondent.
Although periodic statements were sent to the respondent during the ensuing year, the
respondent never protested the bill, which was finally deemed uncollectible and charged
off "to profit and loss
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
routine matters, a social affair, and the renewal of its first contract
which was to expire December 31, 1938, no matters of any importance
were dealt with by the Association during 1938.
In March 1939 Reilly and Scheffler, both of whom were then mem-
bers of the Association, were discharged for alleged absence during
working hours without permission. According to the minutes,. the
respondent's action in discharging these employees was accepted by the
Association upon the respondent's statement of the offence which
occasioned the discharge of these employees. So far as the minutes
disclose, the Association made no independent investigation, offered
no protest, and accepted, as final, the decision of the respondent.
Charges, however, were filed with the Board on behalf of these em-
ployees by the A. F. of L., the charges being amended shortly there-
after to include an allegation that the respondent had interfered with
the formation of the Association. On May 15, 1939, after investiga-
tion by the Board, the respondent consented to post notices disestab-
lishing the Association. The notices were posted on May 19 and
provided that the respondent would withdraw all recognition from
and completely disestablish the Association as the collective bargain-
ing representative of the employees, and that it would not dominate.or
interfere with the formation or administration of any labor organiza-
tion of its employees. Simultaneously with the posting of said notice.
the respondent inserted in the pay envelope of each employee a copy
of the notice and a letter stating that the respondent would continue
the terms of the contract then in force between the respondent and the
Association.17
B. Domination of and interference with the Independent
Tully and Bressler, witnesses for the respondent, admitted that on
May 24, 1939, Tully, Bressler, and Aradjan, then the officers of the
Association,18 and an employee named Ernest Thompson;,who there-
after was' elected vice president of the Independent, left the plant
during working hours and proceeded to Attorney Connelly's office.1'
"This contract was executed on or about December 19, 1938 , and was to continue in
effect for the period from January 1 to December 31, 1939
ffi Martin resigned as president on February 28, 1939 , and Vice-President Tully acted as
temporary president. Bressler served as, secretary after the resignation of Dorothy
Ilorsting in February 1938, and was elected secretary in January 1939 . Aradjan was
elected treasurer to succeed Gibbons in January 1939.
10 The record establishes that these employees were absent about 2 hours on this occasion
without punching the time clock and without loss of pay The respondent admits that
emplo3 ees are usually required to secure permission to take time off from their foremen
The record does not disclose whether any of these employees requested time off from
their immediate supervisors . ' In view of the respondent 's practice and the length of time,
these employees were absent from their work, it is reasonable to infer that such abse_nce ,
was known to their respectioe foremen Accordingly , we find that these employees
absented themselves duting working hours on the business of the Association with the
knowledge and approval of the respondent
ELIZABETH ARDEN, INC. 945
After discussing the disestablishment of the Association, Connelly
advised that a new organization could be formed immediately under
the name of "Factory Employees Association," 20 and a new contract
drawn up with the respondent. Connelly was invited and consented
to attend the meeting which was scheduled to be held that same evening
to explain the matter of "reorganization" to' the membership. That
evening,'pursuant' to, prior, notice, some .117 members of -the. Associa-
tion met at the regular meeting place of the Association in the Pres-
cott Memorial House. Tully, acting president of the Association,
presided, and Bressler, secretary of the Association, recorded the
minutes of the meeting.21 Attorney Connelly attended, and was
questioned by various members as to the reason for and the effect of
the disestablishment of the Association and as to' the procedure for
its reorganization. Baldwin De Souza, a foreman according to the
undenied testimony of the respondent's witness Tully, took an active
part in this meeting, inquired whether disestablishment of the Asso-
ciation could 'be contested and stated, "The question is should we
reorganize. I feel that we should elect officers in this Union but not
disband the Union and whoever is holding office in this Union is
wanted. by the Body and are there because we want their to." Mark-
ham and Aponte, referred to by witnesses for the Board and for the
respondent without contradiction as foremen, made and seconded a
motion respectively, "on reorganizing into another Employees Union."
This motion was carried.22 During the meeting a petition was cir-
culated among the employees, pursuant to Attorney Connelly's
suggestion, to the effect that the signers thereof agreed'to join the
Independent and. to select it as their sole bargaining agency.23
The minutes of the Independent- show that the first official meeting
of the Independent was held on June 20 at the regular meeting place
of the Association. Tully called the meeting to order and acted as
chairman, and Bressler served as secretary. An election of officers-
was held and those who had held office in the Association were elected
to the same offices in the Independent, except that Thompson was
elected vice president, an office which had been left vacant in the
Association from the time that Tully had assumed the office of tem-
porary president. According to Bradley, a member of the Associa-
tion's council committee, the committeemen who were the representa-
60 The Association was also known as "Factory Employees Association of Elizabeth Arden,
Inc." and the suggested name merely omitted the last phrase. At a subsequent conference
held in Connelly's office on June 1, Connelly suggested "Union of Factory Employees of
Elizabeth Arden, Inc." as the name of the Independent, which apparently was adopted.
21
The recorded minutes of this meeting are entitled, "Re-Reorganization of the Associa-
tion."
",The minutes of the May 24 meetingdo not disclose, nor is there any testimony in the
record, that a motion was made or any formal action taken to dissolve the Association
23 The above findings are based upon the recorded minutes of the Association and upon
the uncontroverted testimony of witnesses for the Board and for the respondent.
493503-43-vol. 45-00
•946 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
tives of the various departments,. continued in that capacity for the
Independent, although no election of committeemen had been held.24
A constitution and bylaws, which Attorney Connelly had also pre-
pared, and copies of which had been previously distributed among
the employees, were adopted. The, minutes of this meeting also
indicate that a "J. Kuhn" attended and participated. John Kuhn
was referred to by the respondent's witness Bimbi, as the foreman of
the shipping and stockroom. Factory Manager Peehl acknowledged
John Kuhn to be a supervisor in charge of shipping. In view of
the foregoing documentary evidence and the testimony of the above-
named witnesses, we conclude that" Kuhn, a foreman, attended and
participated in the meeting of June 20.
The constitution and bylaws of the Independent in form, sequence
of paragraphs, language, and content, are substantially similar to
the constitution and bylaws of the Association, the only material
differences between them being that foremen and supervisors, for-
merly eligible to membership in the Association, are ineligible to mem-
bership in the Independent, and that officers as well as council com-
mitteemen are required to have' continuous employment with the
respondent for varying periods of 1 to 3 years depending upon the
particular office," to be eligible for election to office in the Independ-
ent, whereas the Association's constitution made provision for the
qualifications of council committeemen only. It was admitted that
the minute book and other records of the Association were turned
over to the Independent and that the minutes of the Association
were recorded in a loose-leaf book which was also used by the Inde-
pendent and contained the minutes of both organizations. Tully
admitted that on June 26, the bank account of the Association was
transferred to the Independent and was continued in the same branch-
^office of the Manufacturers Trust Company under the same resolution
authorizing the officers of the Association to sign and endorse checks,
notes, or other instruments for the payment of honey. It was also
admitted that Connelly, who acted as attorney for the Association,
not only served in the same capacity for the Independent, but also
that Connelly advised the, officers and membership of the Association
to reorganize, prepared the constitution and bylaws of the Independ-
ent, closely patterned upon the constitution and bylaws of the Asso-
ciation, which he too had prepared, and represented the Independent
24 Mildred Leithead, who succeeded Bressler as secretary of the Independent,, testified
that council committeemen were elected at a meeting subsequent to the June 20 meeting.
The minute book contains no minutes recording the election of council committeemen
except for the meeting of September 19 when new officers and committeemen were elected
after the former officers had been removed by action of the members.
23 For the office of president and vice president, 3 years continuous employment with the
respondent was required ; treasurer, 2 years ; secretary, 1 year ; council committeemen,
1 year. • , , . , . . , - - -
ELIZABETH ARDEN, INC. 947
in bargaining negotiations with the respondent, as he had previously
represented the Association.
As indicated above, upon disestablishment of the Association, the
respondent notified the employees that the terms of its contract with,
the Association would be continued. After the organization of the
Independent. and prior to the expiration of the contract with the
Association-` on` December 31, 1939, the respondent met on several
occasions with the officers and committeemen of the Independent, and
received various grievances and requests including the discontinuance
of the 10-minute rest period, the conversion of the cafeteria into a
smoking room, the assurance of no discrimination against representa-
tives of the Independent, and the payment of overtime, as provided
by the contract. Although the record does not disclose that the
Independent ever requested or received formal recognition from the
respondent as employee-representative, it is clear that the respondent
did in fact recognize and deal with the Independent as such repre-
sentative and that the Independent actively administered the con-
tract during its unexpired term.
In December 1939'the respondent and the Independent negotiated
a contract covering the period from January 1, 1940, to January 1,
1941. On February 14, 1941, the respondent and the Independent
entered into a new contract for the period from February 1, 1941,
to January 31, 1942. The latter contract provided that the term
thereof would be automatically extended for 1 year, unless either
party requested a meeting with the other to renew or to enter into
it new and separate agreement, at least 15 days prior to the date of
expiration. The record does not disclose whether the contract expir-
ing January 31, 1942, was automatically renewed or superseded by a
new contract.
C. Conclusions as to domination of and interference with, the Asso-
ciation and the Independent ; and as to interference , restraint and
coercion
The facts set forth above clearly establish that the Association
was formed and administered by high ranking officials and supervisory
employees of the respondent for the purpose of preventing employee
self-organization. Indeed, the respondent did not except to any
of the findings of the Trial Examiner with respect to the formation
and administration of the Association, and does not deny that, it
dominated *and;'interfered'with the formation and administration of
the Association within the meaning of the Act.
The respondent contends, however, that it cannot be held to have
dominated and interfered with the formation and administration of
the Independent for the reasons that it posted a notice on May 19,
948 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
1939, dissolving the Association and notifying its employees that it
would not thereafter interfere in their rights to self-organization;
that the Independent was a new organization established freely by
employees who were opposed to affiliation with an outside labor
organization ; 26 and that in view of the notice posted on May 19, and
the eligibility of supervisory employees to membership in the Associa-
tion, the employees could not have believed, and did not, as several
employees testified, that the foremen and other supervisors who sug-
gested _ the formation of the Independent, acted on behalf of the
respondent. We find no merit in any of these contentions. The evi-
dence establishes that despite the respondent's agreement to dis-
establish the Association, it continued in existence with slight modi-
fication udder the name of the Independent, having been reorganized
by the members and officers of the Association at the suggestion and
with the aid of representatives of the respondent. The respondent
further aided the Independent by permitting employees to take time
off without loss of pay to effect the reorganization and by immediate
recognition of the Independent, without demand or proof of majority
status, as the representative of its employees with the right to admini-
ster the contract executed by the Association. Moreover, the pro-
visions, of the Independent's constitution which require officers and
committeemen to be continuously employed by the respondent from
1 to 3 years subject the Independent to the respondent's control.
Under these circumstances, the Independent, does not represent the
free choice of the employees.27
We find, as did the Trial Examiner, that the respondent has domi-
nated, interfered with, and contributed support to the formation and
administration of the Association and the Independent, and thereby,
and by its entire course of conduct in opposition to the A. F. of L., in-
cluding the interrogation of employees concerning their union mem-
bership and activity, the discouragement of membership in the
A. F. of.L. and the encouragement of membership in the Association,
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
21 As evidence of its independence , and freedom from domination , the respondent points
to the activities of the Independent and its members , as reflected by the minutes and as
testified to by its witnesses , in ousting the former officers of the Association , in removing
those officers elected in their place , who were members of or sympathetic to the A F. of L ,
in of posing affiliation with the A . F of L, and in its dealing with the respondent. This
evidence is immaterial in view of the clear evidence of the respondent 's domination of
and interference with the Independent and its status as a successor to the company-
dominated Association
27 Cf. Westinghouse Electric & Mfg. Co v. N L R. B , 112 F. (2d) 657 (Cl C. A 2),
aff'd 312 U. S . 660; N. L R B v . Link-Belt Company , 311 U. S 584 ; Matter of Pequanoc
Rubber Company and United Rubber Workers of America, Local #163, affiliated with the
0. 1 0, 40 N. 'L. R B 541 ; Matter of The Perfection Steel Body Company etc., and Local
1151, International Association of Machinists , affiliated with the A . F. of L., 36 N L. R B.
851 ; Matter of Marks Products Co., Inc. and Local No. 3, International Brotherhood of
Electrical Workers , A F. of L ., 35 N L R . B. 1262.
ELIZABETH ARDEN, INC. 949
We find ' further that the contract of February 14, 1941, between the
respondent and the Independent is invalid since it was made with a
labor organization dominated, interfered with, and supported by the
respondent.
'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 de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair
labor practices, we shall order the respondent to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of the Association and, contributed
support to it. Ordinarily such finding would warrant the issuance
of an order of disestablishment of such organization, as recommended
by the Trial Examiner. Such an order is here unnecessary, since
it is clear. that the Association was voluntarily disestablished by the
respondent and' was succeeded by the Independent.' Since, however,
the possibility exists that it may be revived, we shall order the respond-
ent to withhold recognition from the Association as the bargaining
representative of any of its employees for the purpose of dealing with
the respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment.28
We have also found that the respondent dominated and interfered
with the formation and administration of, and contributed support
to the Independent. We find further that the effects and conse-
quences of the respondent's domination, interference, and support,
as well as the recognition'of the Independent as the bargaining repre-
sentative of its employees, constitute a continuing obstacle to the,
free exercise by its employees of their rights to self-organization and
to bargain collectively through representatives of their own choosing.
The respondent's illegal conduct in connection with the Independent
2$ Matter of Square D Company, a corporation and Local 1227, United Electrical, Radio
and Machine Workers of America, C. I. 0., 41 N. L. R B. 693; Matter of Carter Carburetor
Corporation and United Automobile Workers of America, Local 819, affiliated with the
Congress of Industrial Organizations, et ano., 39 N. L R. B. 1269; Matter of Swift k
Company and United-Packing- House-Workers Loco I- industrial Union #814, 15 N. L. R. B.
992, and cases therein cited.
950 , DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
renders it incapable of serving the respondent's employees as a genu-
ine collective bargaining representative. Accordingly, we shall order.
the respondent to withdraw all recognition from the Independent as
the representative of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment and completely to disestablish the Independent as such repre-
sentative.
Since the contract of February 14, 1941, between the respondent
and the Independent embodies recognition of the Independent as
such representative and is a means whereby the respondent's unfair
labor practices are perpetuated, we shall order the respondent to cease
giving effect to said contract with the Independent and any amend-
ment, extension, or renewal thereof, or to any superseding-contract
which may now be in force. Nothing in this Decision and Order,
however, shall be deemed to require the respondent to vary or abandon
such wage, hour, and other 'substantive features of its relations with
the employees themselves, as the respondent may have established in
performance of this contract as amended, extended, renewed, or
superseded. .
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Cosmetic Workers Union, Local 22806, affiliated with the Ameri-
can Federation of Labor, and Union of Factory Employees of Eliza-
beth Arden, Inc. 211 are labor organizations, and Elizabeth Arden Em-
ployees Association 30 was a labor organization, within the meaning
of Section 2 (5) of the Act.
2. By dominating and interfering- with the formation and admin-
istration of Elizabeth Arden Employees Association and Union of
Factory Employees,of Elizabeth Arden, Inc., and contributing sup-
port to each of said organizations, the respondent- has engaged in and
is engaging in unfair labor practices, within the meaning of,Section
8 (2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
29 See footnote 1, supra.
80 See footnote 2, supra.
ELIZABETH ARDEN, INC.
ORDER
951
Upon the basis of the above findings of fact and conclusions of law,,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the:National Labor Relations Board hereby orders that the respond-
ent, Elizabeth Arden, Inc., New York City, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of Elizabeth Arden Employees, Association or Union of Factory
Employees of Elizabeth Arden, Inc., or with the formation or admin-
istration of any other labor organization of its employees, or from
contributing financial or other support to said labor organizations, or
to any other labor organization of its employees;
(b) Recognizing Elizabeth Arden Employees Association or Union
of Factory Employees of Elizabeth Arden, Inc., as representative
of any of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment;
(c) Giving effect to its contract dated February 14, 1941, with
Union of Factory Employees of Elizabeth Arden, Inc., or to any
amendment,' extension, renewal, or supplement thereof, or to any
superseding contract with said Union of Factory Employees of Eliza-
beth Arden, Inc., which may now be in force;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right 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 as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Union of Factory
Employees of Elizabeth Arden, Inc., as the representative of any of
its employees for the purpose of dealing with the respondent concern-
ing grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, and completely disestablish
Union of Factory Employees of Elizabeth Arden, Inc., as such rep-
resentative;
(b) Withhold all recognition from Elizabeth Arden Employees
Association as the representative of any of its employees for the pur-
pose of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment;
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post immediately and maintain for a period of at least sixty
(60) consecutive days in conspicuous places throughout its factory
in the Borough of Queens, City and State of New York, notices stat-
ing (1) that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d)'
of this Order; and (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a) and (b) of this Order;
(d) Notify,the Regional Director for the Second Region in writing
within ten (10) days from the receipt of this Order what steps the
respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
I