Ephraim Haspel

National Labor Relations Board - Board Decisions

Jul 8, 1954

109 N.L.R.B. 37 (N.L.R.B. 1954)

EPHRAIM HASPEL 37
fore, that the picketing is tantamount to a present demand for rec-
ognition,' which renders ineffectual the Union's disclaimer of interest.
4. The following employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act:
All production employees at the Employer's Modesto, California,
plant, excluding office clerical employees, guards, and supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
$ See Petrze 's An Operating Division of Red Robin Stores , Inc, 108 NLRB 1318.
Although Member Peterson dissented therein, he deems himself bound by the decision of
the majority in that case.
EPHRAIM HASPEL, AN INDIVIDUAL DOING BUSINESS AS EPHRAIM HASPEL
and BONNAZ AND HAND EMBROIDERERS, TUCKERS, STITCHERS AND
PLEATERS UNION, LOCAL 66, INTERNATIONAL LADIES GARMENT
WORKERS UNION, AFL. Case No. t-CA-3091. July 8, 195.E
Decision and Order
On December 2, 1953, Trial Examiner Henry S. Sahm issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in and was not engaging in the
unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Gen-
eral Counsel and Local 66 filed exceptions to the Intermediate Report
and supporting briefs. Local 66 and the Respondent also requested
oral argument. That request is hereby denied because the record,
including the exceptions and briefs, in our opinion, adequately pre-
sent the issues and the position of the parties.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings of the Trial Examiner only
to the extent consistent herewith.
The Trial Examiner found that the Respondent had not violated
Section 8 (a) (1) or (2) of the Act. The General Counsel and the
Union except to these findings. We find merit in these exceptions.
The complaint alleged, inter alia, that the Respondent had violated
Section 8 (a) (1) and (2) of the Act by interfering with the forma-
tion of E. Haspel Shop Union, hereinafter called the Shop Union, and
109 NLRB No. 8.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by dominating and contributing support thereto. With regard to
these allegations, the record shows, and we find, as follows:
The Respondent performs certain finishing operations on garments
supplied to him by manufacturers of ladies' wear. Those manufac-
turers have collective-bargaining contracts with the International
Ladies Garment Workers Union or its various locals which preclude
the manufactiu•ecs from furnishing work to nonunion shops. Prior
to the events to be related hereinafter, the Respondent's employees
were not unionized.
On March 19, 1953, the Respondent was approached in his shop by
a representative of Local 66, who asked him to sign a contract with
that Union. The Respondent declined, asserting that none of his
employees was a member of Local 66. Immediately thereafter, the
Respondent informed his employees of the foregoing overture and
asked them whether he should sign a contract with Local 66. All the
employees answered in the negative, stating that they did not want to
join Local 66. The Respondent then told his foreman, Argento
(whom, like the Trial Examiner, we find to be a supervisor), that be-
cause of the aforementioned contracts between Respondent's customers
and ILGWU, it was necessary for Respondent to have a union in his
shop, and Respondent asked Argento to-explain this to the employees.
On March 24, Argento and the Respondent approached the employees
in the shop during their lunch hour and Argento told them about
Local 66's overtures to the Respondent and said, "it is either [Local
66] or a shop union," adding, "It is up to you fellows to decide which
ones you want." The Respondent thereupon left, but Argento re-
manied while the employees held a meeting at which they decided to
form the E. Haspel Shop Union, elected officers, and prescribed an
initiation fee of $4 and weekly dues of 25¢. The group instructed
their chairman, Malara, to seek recognition from the Respondent. On
that day or the next Malara told the Respondent that the employees
"wanted . . if possible . . . to have our own shop union . . . if it
is all right with him." 1 Malara then showed the Respondent a min-
ute book listing those employees who were members of the Shop Union
and asked him if he would recognize the Shop Union and orally agree
to continue the existing terms of employment. The Respondent
assented.
On March 27, the Shop Union held a second meeting on company
premises, but after working hours. None but members attended.
Various fringe beliefits-coffee hours, rest periods, etc.-were dis-
cussed. Either at one of these meetings or during the next few weeks,
the employees discussed proposing to Respondent a new method of
computing vacation pay and the Christmas bonus. Finally, the fol-
'^Qiioted from âIaiara's uncontradicted testimony.
EPHRAIM HASPEL 39
lowing May or June, representatives of the Shop Union proposed
to the Respondent that, instead of measuring the amount of these
benefits by 2 weeks' pay, they be based on 4 percent of each employee's
.annual earnings . The Respondent agreed to this change. The Shop
Union further requested that the Respondent deposit quarterly with
that union 4 percent of the quarterly payroll, to be ultimately dis-
tributed by the Shop Union as vacation pay and the Christmas bonus.
The Respondent agreed to do so, but only if the Shop Union was certi-
fied by this Board.
Vacation benefits for the summer of 1953 were in fact computed on
the new basis of 4 percent of each employee's annual earnings, and
while some employees received less, others received more, than they
would have under the old plan. The net gain for all 15 employees
was $10.
On August 24, at the third meeting of the Shop Union, held in the
shop after work , the members for the first time adopted a constitution
and bylaws. These had been prepared by an attorney, whose fee was
paid out of the Shop Union's funds. However, several visits to this
attorney by Chairman Malara and another officer of the Shop Union
were made on company time and without loss of pay. While the
Respondent did not personally know of these visits , his supervisor,
Argento, testified, and we find, that some of these visits were made
with Argento's approval.
We do not pass upon the question whether by the foregoing conduct
the Respondent interfered with the formation of the Shop Union, as
we find that the Respondent , in any event , violated Section 8 (a) (2)
and (1) of the Act in that he contributed financial and other support
.to the Shop Union. This unlawful support consisted in making avail-
able to the Shop Union the use of his premises for union meetings,
raying officers of the Shop Union for time spent in consulting their
legal advisor, permitting notices of Shop Union meetings to be posted
,on his bulletin board, and granting prompt recognition to the Shoo
Union as the exclusive representative of his employees . While it is
-true that, as found by the Trial Examiner, at the time that the Shop
Union was thus recognized a majority of the employees had expressed
their preference for representation by the Shop Union rather than
Local 66, this was not a proper basis for recognizing the Shop Union
as the true choice of the majority of the employees. It is incompat-
ible with true freedom of choice to limit employees to a selection
between two unions, both suggested by the employer , foreclosing any
expression of preference for other unions or for no union at all.
Moreover, the fact that in this case the selection was made in the
presence of a supervisor was not conducive to a free and untrammeled
expression of the employees ' desire. Accordingly, we find, contrary
to the Trial Examiner, that the fact that the majority of the em-
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees had chosen the Shop Union under such circumstances, which
Were well known to the Respondent, does not excuse the Respondent's
precipitate recognition of the Shop Union.
However, like the Trial Examiner, we find that the allegation in
the complaint of domination of the Shop Union by the Respondent
has not been established by the preponderance of the evidence. Apart
from Argento's participation in the first meeting of the Shop Union,
no representatives of management took any part in the activities of
the Shop Union or attempted to influence its policies. Accordingly,
we will dismiss that allegation of the complaint.
TIIE REMEDY
Having found that the Respondent has violated Section 8 (a) (1)
and (2) of the Act, we will order that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies
of the Act.
Having found that the Respondent contributed financial and other
support to the Shop Union, we will order that the Respondent with-
draw and withhold all recognition from the Shop Union as the bar-
gaining representative of any of Respondent's employees, until and
unless the Shop Union has been certified by the Board as such
representative.2
CONCLUSTONS OF LAW
In lieu of the conclusions of law set forth in the Intermediate Re-
port, the Board, upon the basis of the foregoing facts and the entire
record, adopts the following:
1. The Respondent, Ephraim Haspel, an individual doing business
as Ephraim Haspel is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. The E. Haspel Shop Union and Bonnaz and Hand Embroiderers,
Tuckers, Stitchers and Pleaters Union, Local 66, International Ladies
Garment Workers Union, AFL, are labor organizations within the
meaning of Section 2 (5) of the Act.
3. By contributing financial and other:support to E. Haspel Shop
Union, the Respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (a) (1) and (2) 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.
2 Member Peterson would order the Respondent to disestablish the Shop Union, being
of the view that the Respondent's participation in the formation of that organization was
sufficient to warrant that action.
EPHRAIM HASPEL 41
Order
Upon the basis of the entire record in this case, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
Ephraim Haspel, his agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Recognizing E. Haspel Shop Union as the representative of
any of his employees for the purpose of dealing with them concerning
grievances, labor disputes, wages, hours of work, or other conditions
of employment, unless and until said organization shall have been
certified by the Board.
(b) Entering into, renewing, or giving effect to any contract or
understanding with E. Haspel Shop Union affecting his employees
unless and until it shall have been certified by the Board.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from E. Haspel Shop
Union as the representative of any of his employees for the purpose
of dealing with them concerning grievances, labor disputes, wages,
hours of work, or other conditions of employment, unless and until
said organization shall have been certified by the Board.
(b) Post at Respondent's place of business copies of the notice at-
tached hereto and marked "Appendix A." 3 Copies of such notices,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed, be posted by the Respondent immediately
upon receipt thereof, and be maintained by him for a period of sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to his employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps he
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, be, and it hereby is, dis-
missed insofar as it alleges violations of the Act other than those
found above.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
8In the event that this Order is enforced by a decree of the United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to it Deciee of the United States Court of Appeals, Enforcing an Order"
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
Nu'ricL To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that :
1 WILL NOT enter into, renew, or give effect to any contract or
understanding with E. Haspel Shop Union unless and until it
shall have been certified by the National Labor Relations Board.
I WILL NOT contribute financial or other support to E. Haspel
Shop Union or any other labor organization.
I WILL withdraw and withhold all recognition from E. Haspel
Shop Union as the representative of my employees for the purpose
of dealing with them concerning grievances, labor disputes,
wages, hours, and other conditions of employment, unless and
until said organization shall have been certified as such repre-
sentative by the National Labor Relations Board.
EPHRAIM HASPEL,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed April 21, 1953, by the Bonnaz and Hand Embroiderers, Tuck-
ers, Stitchers and Pleaters Union, Local 66, International Ladies Garment Workers
Union, AFL, herein called the, Charging Union, against Ephraim Haspel, an indi-
vidual doing business as Ephraim Haspel, herein called the Respondent, the General
Counsel for the National Labor Relations Board issued a complaint on June 23,
1953. The complaint alleged the commission of unfair labor practices by the Re-
spondent within the meaning of Section 8 (a) (1) and (2) and Section 2 (6) and
(7) of the Labor Management Relations Act, 1947, 61 Stat. 135, herein called the
Act.
With respect to the unfair labor practices, the complaint, as amended, alleges in
substance that the Respondent had questioned his employees with regard to their
union activities and promised them benefits on condition that they would assist,
join, and recognize the E. Haspel Shop Union, herein called the Shop Union, as their
exclusive bargaining agent. In addition, the complaint alleges that the Respondent
sponsored, promoted, assisted, dominated, and contributed to the support of and
interfered with the administration of the Shop Union.
Copies of the charge, complaint, and notice of hearing were served upon the
parties.' Respondent filed his answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices. Pursuant to notice, a
hearing was held in New York, New York, from September 28 to October 1, 1953,
inclusive, before Henry S Salim, the undersigned Trial Examiner. All parties were
represented by counsel and were afforded full opportunity to participate in the hear-
i Although the Shop Union was not named as a party in the caption of the formal
papers in this case, it was in all material respects treated as a party to the proceeding.
It was served with copies of the charge, complaint, notice of hearing, and other formal
documents.
EPHRAIM HASPEL 43
ing and to introduce relevant evidence bearing on the issues, to argue the issues
orally upon the record, and to file briefs and proposed findings of fact and con-
clusions of law. Only the Respondent filed a brief. During the course of the hear-
ing, ruling was reserved on the admission of General Counsel's Exhibit No. 5. It is
hereby admitted in evidence. Various motions also were made by the Respondent to
dismiss the complaint. These motions are disposed of in the following findings of
fact and conclusions of law.
Upon the entire record in the case, and from his observation of the demeanor of
the witnesses, the Trial Examiner makes the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent Haspel, an individual doing business as Ephraim Haspel, whose shop
is located in New York, New York, is engaged in tucking, pleating, and stitching on
women's blouses, sportswear, dresses, and related products. He performs these serv-
ices on a contract basis for manufacturers of such garments. During the year end-
ing June 1, 1953, in the course of his business operations, Respondent rendered serv-
ices valued at an amount in excess of $75,000. Of these services performed during
this period, approximately $4,000 worth were rendered to companies located in States
of the United States other than the State of New York. All of the remaining serv-
ices rendered by Respondent were performed for companies which ship more than
$25,000 worth of finished products from New York State to States of the United
States other than New York. By reason of the foregoing facts, and Respondent so
admits, it is found that the Respondent is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
II. THE ORGANIZATIONS INVOLVED
The E Haspel Shop Union and Bonnaz and Hand Embroiderers, Tuckers, Stitchers
and Pleaters Union, Local 66, International Ladies Garment Workers Union, AFL,
are labor organizations admitting to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES 2
A. Introduction
Shortly after the Charging Union evinced an interest in unionizing Respondent's
shop, the employees formed an independent shop union. The General Counsel al-
leges the Respondent violated Section 8 (a) (1) and (2) of the Act by suggesting to
his employees that they form their own shop union and by promising them certain
benefits provided they joined the Shop Union and not the Charging Union, Local
66.3
B. Summary of events 4
The Respondent, Haspel, occupies space in a building located in New York City.
The number of his employees vary but they averaged 15 during the period of time
material in this case. Respondent performs certain specialized services on a con-
tract-fee basis for manufacturers of women's apparel. These manufacturers, who
retain title to the material, send him their garments for tucking, pleating, and stitch-
ing. After these services are performed on these garments, they are returned to the
manufacturer by the Respondent. These manufacturers for whom Respondent
performs these services have contracts with the international Lacl•°s Garment Work-
ers Union, the International affiliate of the Charging Union herein, which provide
that the manufacturers cannot subcontract any of their work to nonunion shops.
Respondent's employees were not union-affiliated
Haspel originally entered this line of business in September 1949. In 1950 or
1951, when Haspel's shop occupied 2 rooms in another building than where he now
rents, a representative of Local 66 discussed with him his signing a union contract.
When Haspel related this incident to his employees, they told him that they were not
9 The testimony concerning some of the incidents involved in this proceeding Is ambig-
uous and incomplete as to specific details so that the findings of fact made herein result
from the Trial Examiner's attempt to reconcile the evidence and determine what occurred
S Section 8 (a) (2) prohibits an employer to dominate or interfere with the formation
or administration of a union or to contribute support, financial or otherwise to it.
4 There is no dispute over the basic facts The controversy is mainly as to the legal
conclusions to be drawn from the facts.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interested in joining a union. Haspel had no further contact with the Union until
March 19, 1953, when Leo Di Peri, business agent of the Union, came to his shop
and asked him to "Come down [to the Union's office] and sign a union contract
-with the Union." 5 Haspel replied that inasmuch as none of his employees were
members of Local 66, he did not think he should sign a contract with the Union.
During this conversation, Di Peri, and this is uncontradicted, threatened Haspel,
warning him if he did not sign a union contract that his shop would be picketed.
his customers interfered with, and his shop visited by "raiding committees " Haspel
also testified that Di Pen threatened him and his employees with bodily harm. A
week or so later Haspel met a second time with Di Peri at a restaurant to discuss the
.delay in signing the union contract at which time Di Peri told Haspel "to sign up
or else."
Immediately after the first conversation with Di Peri on March 19, and after Di
Peri had left the premises, Haspel 'walked to the front of the shop, faced his 15
employees who were working at or in the vicinity of the 8 machines which he has
in his shop and said, "Boys, Local 66 was up llere-a representative was up here
and wants me to sign a union contract with them. What do you want me to do?"
"The boys as a group," Haspel testified, "shouted `No,' they told me they didn't
-want to belong to Local 66."
Haspel then spoke to his foreman, Argento 6 reminding him that there must be
a union in his shop because the manufacturers upon whom his shop was dependent
for work had contracts with the International Ladies Garment Workers Union, the
'Charging Union's international affiliate, requiring them to do business only with
-union shops. Haspel asked Argento to explain the situation to the employees.
Argento delivered Haspel's message to the employees telling them there must be
a union in the shop but he emphasized that whether they decided to join Local 66
-or any other union was entirely within their discretion The employees-after con-
-siderable discussion decided to form the E. Haspel Shop Union.
On March 29, the employees held their first formal union meeting in the shop
during their lunch hour. They elected Ignatius Malara, chairman, and Josephine
Carter, secretary-treasurer, of the Shop Union and voted an initiation fee of $4
and weekly dues of 25 cents. The members instructed their chairman, Malara, to
advise Respondent that they had formed a union and desired to be recognized as
the collective-bargaining agent of his employees
Malara did so and when Haspel was advised by Malara of his authority to nego-
tiate an agreement for the Shop Union, Haspel inquired as to how many of the em-
ployees belonged to the Union. Malara produced a list showing all of the
employees to be members of the Shop Union whereupon Haspel agreed to recognize
the Shop Union.7
Malara then discussed with Haspel working conditions in the shop and it was
agreed orally that the same hours and wages and the existing arrangement with re-
spect to vacation pay and the Christmas bonus should continue.
The members of the Shop Union at their next meeting , which was held in the
shop after working hours, voted to ask Haspel to change the method by which the
employees' vacation pay and Christmas bonus was computed. Malara discussed
this matter with Haspel who agreed to change the method of computation but he
would not agree to give these funds to the Shop Union directly for distribution by
it to the members until such time as the Shop Union was certified by the National
Labor Relations Board as the employees' bargaining representative.
After the charge in this case was served on the parties, Malara was instructed by
the Shop Union members to consult with an attorney in order to ascertain whether
their action in organizing the Shop Union was legal Malara was advised by an
attorney that they could do so which he reported to the Shop Union members. The
attorney also drafted a constitution and by laws 8 which was adopted by the Shop
Union members at their August 24 meeting held in the shop after working hours.
6 There is no evidence that any of Respondent's employees had been solicited to join the
Charging Union One witness testified she had never been approached by the Charging
Union.
O The General Counsel contends and Respondent denies that Argento is a supervisor.
Although such a finding is unnecessary in order to resolve the salient issues in this pro-
ceeding , it is found , upon the basis of the entire record, that Argento is a supervisor within
the meaning of the Act.
T Respondent also filed a petition on March 31 , for certification of a collective -bargaining
representative (Case No 2-RM-487).
a The attorney, Joseph F. Minutolo, received a fee of $76 for these services which was
paid from the Shop Union's funds.
EPHRAIM F1ASPEL 45
Before discussing the legal conclusions to be reached upon the above findings of
-fact, reference should be made to several incidents. These incidents are not con-
sidered in making findings of fact nor are they made the basis for resolving any
of the legal issues herein involved but are mentioned merely as background to clarify
and explain the statements which were made by Respondent and which are discussed
in more detail, infra.
After the Respondent was threatened by Di Peri, he instituted an action on March
30, 1953, in the U. S. District Court for the Southern District of New York against
the Charging Union. The petition which asked for a temporary injunction averred
that the Union had threatened injury to the Respondent, his plant, and employees.
The court dismissed the action and an appeal is now pending before the United
States court of appeals Respondent then filed on March 31, 1953, with the Re-
gional Office of the, Board, a petition for certification of a collective-bargaining
representative (Case No. 2-RM-487) which was dismissed by the Regional Direc-
tor. On April 6, 1953, he filed a charge against the Union based upon the con-
versations he had had with the union representative, Di Peri (Case No. 2-CC-248).
.The Shop Union also filed a petition on August 3, 1953, requesting that it be cer-
tified as the representative of the Respondent's employees
C. Contentions and concluding findings
Based upon these facts the General Counsel contends that Respondent Haspel
initiated the formation of the Shop Union when he told his employees that he must
have a union in his shop and that he assisted it in order to combat the interest evinced
in his employees by Local 66. The evidence for this conclusion, he urges, is
the precipitate manner in which Respondent recognized the Shop Union without
adequate proof that it represented a majority of the employees; permitting it to hold
meetings in the shop which extended onto the Employer's time; allowing union mem-
bers to transact union business during working hours without deducting from their
wages for time so spent; and promising his employee benefits conditioned on their
adhering to the Shop Union.
The General Counsel contends that when the Respondent, after his conversation
with Di Peri, advised his employees he must have a union in his shop that he com-
mitted an unfair labor practice. This contention is premised on the language of
Section 7 of the Act which provides, inter alia, that employees have the right to
refrain from joining a union, except to the extent such right may be affected by an
agreement requiring membership in a union.' In short, the General Counsel argues
that when the Respondent's employees were told there must be a union in his shop,
this statement was tantamount to bringing compulsion on the employees to join a
union.
To accept this argument is to give credence to a literal interpretation of the words
Respondent spoke without regard to attendant realities in this case. The congres-
sional purpose embodied in the Act is not served by such literalness. A mechanistic
approach when judged by the realities of the case and found wanting cannot be
countenanced. Semantics cannot be the basis for determining what Respondent
meant when he told his employees that he must have a union in his shop.'° Nor can
the substantive legal incidents resulting from this statement be adjudicated in a
vacuum or in the abstract without regard to the existing circumstances under which
the Respondent made this statement.
The observation which the Supreme Court made in International Assn. of Machin-
ists v. N. L. R. B., 311 U. S. 72 at page 79 can well be paraphrased to fit the circum-
stances of this case. To say that the Trial Examiner must disregard what preceded
the bare statement of the Respondent that he must have a union in the shop would
° The proviso beginning with the word "except" has no application to the facts of this
case as the Respondent had no union in his shop it the time thi i incident occurred.
10 As was .aid by Chief Judge Hutcheson in N. L. R B v. Metallic Bldg. Co., 204 F. 2d
826 (C. A. 5) :
Drawn to deal substantially with substantial things, the National Labor Relations
Act has been from the beginning, it must continue to be, consistently with its avowed
purpose and the language employed in the Act, broadly construed and as broadly
given effect to cope with and prevent the mischiefs it was designed to meet and do
away with.
Shadow boxing with words, including dialectical hair splitting, the tithing of mint,
anise and cumin, and the division of a mustard seed, to reach a formal , a technical
result, has therefore no proper place, and may not be employed , in construing and
applying it.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be to require the trier of these facts to shut his eyes to potent imponderables. The
detection and appraisal of such imponderables are indeed one of the essential func-
tions of a Trial Examiner.
These existing circumstances which must be considered were the Respondent's
knowledge that all of his customers had entered into contracts with the Charging
Union's international affiliate which provided that they could only subcontract their
work to contractors who operated union shops . The Respondent depended entirely
on these customers for all of his business . He was aware , as were his employees,
that if the Union brought pressure to bear upon these customers and they no longer
sent him any more work that he would be compelled to close his shop . These were
the existing circumstances-the actualities-with which he was confronted when he
made the statement to his employees that he must have a union in his shop.
A study of the legislative history of Section 8 ( a) (2) of the Act and the cases
interpreting it, have persuaded the Trial Examiner that these facts cannot be con-
strued to be the basis for finding an unfair labor practice It seems clear that in
considering whether the statement by the Respondent that he must have a union in
his shop violates the Act-that this naked and isolated statement must be considered"
in connection with the relevant circumstances and background in which it was made
If this statement were to be considered only as to the words it contains , it might seem
to destroy the employees ' freedom of choice and action, but when the relation of
the parties , the surrounding circumstances , related statements and events , and the
background of the employer 's action are considered , it may be found that the state-
ments were not in violation of Section 7 or contrary to the expressed purposes of
the Act. Therefore , in determining whether the Respondent 's statement that he must
have a union in his shop constitutes or is evidence of an unfair labor practice, there
must be considered in connection with the statement , the position of the parties, the
background of circumstances under which it was made and the general conduct of
the parties . If, when so considered , such statement does not constitute a general
pattern or course of conduct which constitutes coercion and deprives the employees
of their free choice guaranteed by Section 7, such statement cannot be considered
as a basis for a finding of unfair labor practice . To hold otherwise would be to
effectuate a result which Congress could not have intended.
The Act did not undertake the impossible task of specifying in precise and unmis-
takable language each incident which would constitute an unfair labor practice. On
the contrary , the Act left to the trier of the facts the work of applying the Act's
general prohibitory language in the light of the infinite combination of events which
might be charged as violative of its terms."
In those cases where the employer was found to have coerced his employees into
forming a so-called "company -union," his conduct was such as to interfere with,
restrain , or coerce his employees in the exercise of their right to choose a bargaining
representative . In this case , however, all the Respondent did was to expain to his
employees why he must have a union in his shop which right , under the circumstances
here related , is guaranteed to him by Section 8 (c) of the Act Under the Act, mere
words ascribable to an employer do not constitute unlawful interference with the
legal rights of the employees , unless the words amount either to an actual threat to,
their freedom of choice , or, when interpreted in the light of other proven facts to be
an implied threat of the same character.
Hence, the Respondent in bringing to his employees ' attention the facts with
which he was confronted and which impelled him to explain why he must have a
union in his shop was merely exercising his right of free speech Nor is the state-
ment coercive when evaluated in the context in which it was spoken. Under the
circumstances of the case , it is found that the statement is protected both by Section
8 (c) of the.Act and by the constitutional guarantee of free speech . Accordingly,
it is found that nothing contained in said statement is violative of the Act.
The General Counsel claims that the Respondent initiated and participated in
the employees ' determination to form a shop union The record, however, does
not confirm this contention . When Haspel told the employees that he must have
a union in his shop, and Argento , the shop foreman , at Haspel 's direction , explained
to the employees the reason why a union was necessary , the employees after consider-
ing what they had been told , decided it would be preferable to form their own
shop union rather than affiliate with Local 66, the Charging . Union herein. The
reason they so decided was because those shops which were affiliated with Local 66
had seasonal layoffs whereas Respondent 's shop had in the past worked steadily
the year around. They believed that the probabilities of their working steadily,
would be diminished if they joined an affiliated union.
11 Republic Avuitlon Corp v N L R B, 324 II S. 793, 798
EPHRAIM HASPEL 47
- Insirello, an employee, in answer to a question as to why the employees decided
to form a shop union testified as follows:
We were sort of content with what he had and we would like to keep it
that way if it were possible. We were all making a living in the shop and
making a fairly good living and a sort of steady living. Not like the run-of-the-
mill of the other shops on the outside that have seasonal work. Off season
we work pretty steady. Figured we wanted to keep it that way. And they
[employees] all got together and they thought well, here we are making a
living, not making as much as the Union permits to pay but on the overall
we are making a good living and steady and if we could possibly keep it that
way, meaning by forming a shop union, we can keep it that way, we would
like to do it that way.
This testimony, which is uncontradicted, shows, and it is so found, that there
was no interference by the Respondent with the formation of the Shop Union and
.that the decision not to affiliate with Local 66 was the untrammeled choice of the
.employees themselves. Nor are there sufficient facts in the record to support a
finding that the Respondent assisted the Shop Union or dominated and interfered
with its formation and administration in violation of Section 8 (a) (2) of the Act.
On the contrary, the evidence indicated that the employees voluntarily chose to form
the Shop Union.
Prior to the formation of the Shop Union, Respondent had given his employees
a paid vacation of 1 week and a Christmas bonus equivalent to 1 week's salary.
After the Shop Union was organized, Malara, the chairman, requested the Respondent
to agree to pay the employees an amount equivalent to 4 percent of their gross
annual pay in lieu of the existing arrangement whereby they received 1 week's paid
vacation and a Christmas bonus amounting to a week's pay. Respondent agreed.
Malara then asked Respondent to pay the vacation and bonus money to the Shop
Union's employees benefit fund for distribution by the Shop Union to its members.
Respondent would not agree to do this unless the Shop Union first was certified by
the Board as the collective-bargaining agent of his employees.
The General Counsel takes the position that this 4-percent method for computing
vacation pay and the Christmas bonus is a promise of benefit to the employees and
that Respondent made these alleged benefits dependent on recognition and certifica-
tion of the Shop Union so that by this tactic, Haspel "keeps his [employees] in line
[and so] ties them to the E. Haspel Shop Union, which he has assisted," thereby
preventing the employees from exercising "free choice any longer."
Insofar as increased monetary benefits accruing to the employees under this
new plan are concerned, Respondent's Exhibit No. 1 shows that some of the em-
ployees did benefit by a small amount, while others received less money than they
had received formerly. On an overall basis, however, the 15 employees benefited
by $10 in the aggregate or approximately 33 cents annually for each employee.
This amount is so insubstantial that it is found the employees received no appreciable
increase or benefit thereby under the plan inaugurated after the formation of the
Shop Union.
The General Counsel then argues that conceding there may not have been any
substantial financial benefit to the employees, still the fact that the manner of
computing the vacation pay and Christmas bonus was made simpler is in itself a
benefit. The General Counsel has produced no authority for this argument, nor
are there any cases, so far as the Trial Examiner is aware, holding for this proposi-
tion.
The General Counsel cites as an example of assistance rendered by the Respondent
to the Shop Union the fact that 2 Shop Union members absented themselves from
work on 2 occasions on company time to transact union business at the office of the
Shop Union's attorney, and the time so spent was not deducted from their wages.
It is uncontroverted that on both these occasions the Respondent was not in the
shop when the employees left or when they returned a few hours later. The
Respondent testified that he knew nothing of these alleged acts of assistance of
his until he heard it related at the hearing.12 Assistance, by hypothesis, connotes
help intentionally, consciously, and voluntarily rendered. The Trial Examiner finds
it impossible to accept the General Counsel's contention that the Shop Union was
assisted when the Respondent was totally ignorant of the fact that the employees
had gone to the office of the Shop Union's lawyer. Such a conclusion stretches
too far the meaning of "assistance ." The Respondent, it would appear , cannot,
under such circumstances, be chargeable with assisting the Shop Union.
12 The evidence is contradictory whether Argento knew of the employees' visits to the
attorney 's office.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends that when the Respondent permitted Shop Union
meetings to be held on his premises during the lunch hour and after working hours
that he thereby violated the Act.13 Nowhere in the record is there any indication
that the Respondent required such meetings to be held in the plant; that any condi-
tions were attached to the use of his facilities, or that he gave any inducements to
the Shop Union to hold their meetings there. The Shop Union was free to hold
its meetings in any place and in whatever manner it wished. The Respondent never
participated himself or by his foreman, Argento, in these meetings.14 When Haspel,
the Respondent, was asked if he permitted his employees to hold their Shop Union
meetings on his premises, he replied: "I didn't permit it but I didn't forbid it. I never
registered any objections to it." The fact that Respondent remained passive should
be a point in his favor rather than be considered an indicium of assistance. The use
of the employer's premises by the Shop Union for its meetings , by itself, is not an
unfair labor practice but must be considered in relation to the attendant circum-
stances. Tennessee Knitting Mills, Inc., 88 NLRB 1103.
In this connection, the record discloses a friendly attitude on the part of the Re-
spondent toward his employees prior to the formation of the Shop Union. With the
advent of the Shop Union there was no legal necessity for this friendly attitude to be
transformed to antagonism. The Act does not require a militant attitude between
labor and management. To the contrary, a peaceful and satisfactory relationship of
the kind in effect between Respondent and his employees is the objective of the Act.
To hold that the use of the Respondent's shop for union meetings, under such cir-
cumstances, is assistance forbidden by the Act would be the equivalent of punishing
beneficence and placing a premium on malevolence. Such an interpretation, it is sub-
mitted, would not effectuate the purposes of the Act, especially where the Union, as
here, was indigent and could ill afford to rent space to hold their meetings.
The General Counsel's claim that the precipitate manner in which the Respondent
recognized the Shop Union is an indicium of assistance misconceives the type of sit-
uation to which this argument has reference. Assuming arguendo, that the Respond.
ent did act precipitately in recognizing the Shop Union, the Respondent's action is
not evidence of an unfair labor practice, because the Shop Union, at the time it was
recognized by the Respondent, represented all of the Respondent's employees. More-
over, Local 66, the Charging Union herein, had made no claim of majority repre-
sentation on the date when the Respondent recognized the Shop Union. Further-
more, when the Respondent recognized the Shop Union, he was not confronted with
conflicting representation claims by two rival unions. Therefore, Respondent's
recognition of the Shop Union, under these circumstances, did not constitute unlaw-
ful assistance. Suer Mill Company, 92 NLRB 1680, 1683.
Finally, the complaint alleges that' Respondent questioned his employees with
regard to their union membership, sympathy, and activities in violation of Section
8 (a) (I) of the Act. There is no evidence in the record, either substantial or in
the nature of a scintilla, to support this allegation and it is so found.
The gist of the General Counsel's position appears to lie in the contention that the
Respondent violated the Act when he took the initiative in calling the employees
together and announcing what had occurred in his conversation with Di Peri, the
union business agent, and stating to them that he must have a union in his shop.
This, the General Counsel contends, is contrary to the policy expressed in Section 7
and violates Section 8 (a) (1) and (2) of the Act.
The record indicates that the determination of the employees to form their own
labor organization and not to associate with an affiliated union was influenced by
their past experiences in the New York City garment industry. They considered
carefully the benefits which they believed would derive from a shop union and con-
trasted these benefits with the possible disadvantages of having an outside union in
the shop. The Act does not deprive them of the right to organize and form an inde-
pendent union nor does it require that they join an affiliated union. They can choose
14 The General Counsel contends also that meetings were held on company time The
record does not sustain this allegation. The General Counsel points to the use of the
Respondent's bulletin board and purchase of the Shop Union's minute book for a trifling
sum with Respondent's funds as indicia of assistance. These incidents are insubstan-
tial and insufficient to support a finding of unfair labor practices because they exerted
no material influence upon the members of the Shop Union Moreover, Respondent was
not aware that his funds mere used to pay for the minute hook See Carter's testimony at
pages 248-250 Cf also Julius Resinch, Inc, 86 NLRB 38, 49, 50; Syracuse Color Press,
Inc , 103 NLRB 377.
14 Argento was present at one meeting but for no other purpose than to deliver Haspel's
message that he must have a union in his shop.
EPHRAIM HASPEL 49)
any bargaining representative they desire. When they make that choice, it is an in-
violable election so long as their choice was not instigated, assisted, dominated, or
interfered with by the employer. The Shop Union was not instigated by the Respond-
ent but evolved from a situation in the New York City garment industry with which,
the employees were familiar. They believed it was to their best self-interests to form
a shop union. There is, therefore, no justification for the allegation that the Shop
Union was instigated, assisted, and dominated by the Respondent. The evidence
shows that the Respondent maintained a neutral policy in that the Respondent never
attempted to influence or dictate any decision of the Shop Union. Nor is there any
evidence in the record that any member of the Shop Union felt himself coerced. In
N. L. R. B. v Thompson Products, 130 F. 2d 363, 368, the court pointed out that
"the test, whether a challenged organization is employer controlled, is not an ob-
jective one but rather subjective from the standpoint of employees." Cf. Interna-
tional Assn. of Machinists v. N. L R B., 311 U. S. 72, N. L. R. B. v. Link-Belt Co.,
311 U. S. 584. This comment seems directly applicable here.
The Shop Union, it is true, was quickly formed and promptly recognized by the
Respondent. To this, in itself, there can be attached no stigma of unfair labor prac-
tice. If the Shop Union represented a majority of the employees, it was the statutory
duty of the Respondent to recognize it. The situation here was much stronger for re-
quiring recognition because the Shop Union represented all the employees and
furthermore, the Charging Union, Local 66, had never claimed it represented a
majority of Respondent's employees.
There was no labor organization in the shop prior to March 1953, no unrest
over union matters and the employer-employee relationship was friendly. Shortly
after the employees were made aware of the interest of Local 66, in establishing a
union at Respondent's shop, the employees discussed the merits and demerits of
various forms of organization and the advisability of forming their own union. An
informal meeting was held by the 15 employees at which was considered the ques-
tion of organizing a shop union of the employees to bargain collectively through a
representative of their own choosing and to form a labor organization within the
ranks of the shop's employees. Subsequently, they consulted with an attorney, hav-
ing no connection with the Respondent, and sought advice as to whether they com-
plied with the law in forming their own shop union. After hearing the facts, the
attorney advised them that their action was proper and he drew up a proposed con-
stitution and bylaws which was later adopted by the members.
Once organized, the Shop Union became active to protect its members' interests by
bargaining effectively with the Respondent. It did everything for its members that
any union might legitimately do including the establishment of a fund for paying
benefits to its sick members. It entered into an agreement, albeit oral,is with Re-
spondent, but was unsuccessful with respect to having the funds which represented
the vacation pay and Christmas bonus paid directly to the Shop Union until such
time as it was certified by the Board. This aspect of the negotiations indicates that
the parties were dealing with each other at arm's length. The Trial Examiner is per-
suaded that the record in this case shows one of those situations where the employees
decided to form their own shop union, to prevent what they considered might be a
less advantageous external organization Moreover, there is not substantial evidence
from which it could be reasonably inferred that these employees, did not, with
complete independence and freedom from domination, interference or support
of the Respondent, form their own union and it is so found
The Act does not compel employees to affiliate with any particular union, national
or otherwise It does not prevent them from forming truly independent unions of
their own choosing. N. L. R. B. v. Newport News Shipbuilding ct Dry Dock Co,
308 U S 241, 250. The Act does not purport to prohibit independent unions except
where they are linked to the employer There is no presumption in the law or under
the cases construing Section 8 (a) (2) of the Act that an independent labor union
cannot exist without some form of employer support 16
Freedom of choice on the part of employees is the essence of the right which is
protected by Section 8 (a) (1) and (2) of the Act. There is no substantial evidence
that the Respondent engaged in conduct which can be fairly construed as an inter-
"Theie is no requirement that collective-bargaining agreements be in any particular
form, or that they be reduced to writing N L 1? B. v Scientific Nutrition Corp , 180 F
2d 447, 449 (C A 9)
19 De tiardelehen v N L R B . 135 F 2d 13, 15 (C. A. 5) ; N L R B v Thompson Prod-
ncty, 162 F 2d 287. 293 (C A 6) , House Conference Report No 510, 80th Cong, 1st Sess,
page 40; S Rep. 106, 80th Cong 1st Sess, pp 3, 12-13; 93 Cong Ece 4150,
4321, 4411, 5145
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ference with the employees ' freedom of choice, or that the Respondent has domi-
nated and interfered with the administration of the Shop Union or contributed fi-
nancial or other support to it.17 It is found, therefore , that at no time did the
Respondent interfere with, restrain , or coerce the Shop Union . After considering the
entire record and demeanor of the witnesses while testifying , it is concluded that
the evidence does not indicate any violation of Section 8 (a) (2) of the Act. In view
of the conclusions reached in earlier sections of this report , it is found also that the
complaint 's allegations of independent violations of Section 8 (a) (1) on the part
of the Respondent have not been sustained . The burden was on the General Coun-
sel to prove affirmatively , by substantial evidence , that the conduct described above
constitutes unfair labor practices . The Trial Examiner does not believe that the
General Counsel met this burden and it is so found.18
In view of the foregoing conclusions , it is concluded that the evidence warrants no
finding that the Respondent committed unfair labor practices within the meaning
of Section 8 (a) (1) and (2) of the Act, and it will therefore be recommended that
the complaint be dismissed in its entirety.19
On the basis of the foregoing and upon the .entire record in the case , the under-
signed makes the-following:
CONCLUSIONS OF LAW
1. The Respondent, Ephraim Haspel, an individual doing business as Ephraim
Haspel has engaged in and is engaging in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. The E. Haspel Shop Union and Bonnaz and Hand Embroiderers, Tuckers,
Stitchers and Pleaters Union, Local 66, International Ladies Garment Workers
Union, AFL, are labor organizations within the meaning of Section 2 (5) of the
Act.
3. The allegations of the complaint that Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (a) (1) and (2) of the
Act have not been sustained.
[Recommendations omitted from publication.]
17 Cf. N. L. R. B. v. Swank Products , 108 F . 2d 872 , 874 (C. A. 3).
18 Indiana Metal Products Corp . v. N. L. R. B., 202 F . 2d 613 (C. A. 7).
19 N. L. R. B. v. Universal Camera Corp ., 340 U. S . 474 at 494, 495, 496 ; N. L. R. B. v.
Dinion Coil Co., Inc. , 201 F. 2d 484 (C. A. 2).
ARTHUR COLTON COMPANY and SNYDER TOOL AND ENGINEERING COM-
PANY and INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO.
Case No. 7-CA-90.1j. J'lly 8,1954
Decision and Order
On February 15, 1954, Trial Examiner Loren H. Laughlin issued
his Intermediate Report in the above-entitled proceeding, finding
that Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, Respond-
ents filed exceptions to the Intermediate Report and a supporting
brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
109 NLRB No. 7.