Fine Art Novelty Corp.

National Labor Relations Board - Board Decisions

Jan 12, 1944

54 N.L.R.B. 480 (N.L.R.B. 1944)

In the Matter of FINE ART NOVELTY CORPORATION and LOCAL 45-B,
UNITED FURNITURE WORKERS OF AbILR1OA, C. 1. 0.
Case No. C-2714.-Decided Janua2 y 12 , 1944
DECISION
AND
ORDER
On August 30, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
annexed hereto. The respondent and the Union thereafter filed ex-
ceptions to the Intermediate Report. The Board has reveiwed the
rulings made by the Trial Examiner at the, hearing and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
Upon request of the Union, and pursuant to notice, a hearing was
held before the Board in Washington, D. C., on November 18, 1943,
for the purpose of oral argument. The respondent and the Union
appeared and were represented by counsel at the hearing. The Board
has considered the Intermediate Report, the exceptions of the parties,
and the entire record in the case,,and hereby adopts the findings, con-
clusions, and recommendations made by the Trial Examiner, with
the following exceptions, modifications, and additions :
1. The Trial Examiner found that the respondent is not responsible
for the activities of Clothilde Monez and Fannie Testa. We do not'
agree with this finding. The bedspread department, in which Monez
occupied a position directly under Foreman Zaum, employed 67
operators and 16 floor girls. The slip cover department, of which
Bromberger was foreman and in which Testa performed duties similar
to those of Monez in the bedspread department, employed 37 operators
and 7 floor girls. Monez and Testa were in charge of their respective
departments in the absence of the foreman ; supplied the operators
with materials and transmitted the foreman's orders to them; in-
structed new operators; and collected the finished products from the
machines. They were paid for vacations, holidays, and for a full
day regardless of whether they worked the required 8 hours, benefits
54 N L R. B., No 76.
480
FINE ART NOVELTY CORPORATION 481
which were not accorded the operators. Employees of both depart-
ments testified that the operators considered Monez and Testa to be
their foreladies; and that Monez and Testa criticized their work and
conduct, granted them permission to be absent from work, and noti-
fied them of changes in working hours. Employee Anna Jenkins
testified that on one occasion Monez asked her to "give an account"
of herself for being absent the preceding day without her permission.
Jenkins and Mary Thomas testified that Monez reprimanded em-_
ployees for talking and ordered them to "get out the work." Cutter
Harold Mont testified that he had heard'Monez reprimand employees
for spending too much time in the rest room. Celia Moskowitz testi-
fied that Testa gave her instructions as to the work and that "she
hollers up ... `What is going on up there? I told you to keep quiet
now."" Moskowitz also testified that shortly before the strike Testa
told her, "Listen here, I am telling you to do it this way, and do it as
I tell you now." Rose De Ninno testified that Testa managed and
distributed work, showed the girls how to do it and made sure that they
kept working, and that occasionally she would "quiet the girls down."
She also testified that Testa once told the operators, "I am the boss
here now; you have to take orders from me." Lillian Birdsall testi-
fied that shortly before the strike Testa issued a rule which forbade
more than one girl from going to the rest room at the same time.
Monez and Testa denied that they exercised any supervision over the
operators or that they reprimanded or disciplined them in any way.
Upon a careful consideration of their testimony and of the entire
record, we do not credit their denials. It is clear, and we find, that
Monez and Testa occupied supervisory positions in relation to the
operators, that they held themselves out in such a capacity to the em-
ployees with the knowledge and consent of the respondent, and that the
employees considered them to be part of management. Monez and
Testa had occupied their positions for a considerable length of time
and, throughout this period, had exercised the normal functions of
supervisory personnel. So far as the record shows, the respondent
at no time informed the operators that Monez and Testa did not have
such authority, nor did it undertake to curb the exercise thereof by
Monez and Testa. The Trial Examiner found that Monez and Testa
criticized the work and conduct of the employees ; that they exercised
minor supervisory functions; that Monez was "regarded by the em-
ployees as identified with management"; and that Testa "represented
herself to be in charge of the operators." He further found, how-
ever, that they were not responsible for production and that, since they
had no authority to hire, discharge, or recommend such changes in
status, the respondent is not responsible for their activities. We do
not agree that Monez and Testa were not in some degree responsible
507900-44-vol. 54-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
for production in view of the fact that they assigned the work, in-
structed the operators as to its performance, and kept the work flow-
ing, under the general supervision of their respective foremen. Nor
do we consider decisive of their status their lack of authority to effec-
tuate changes in the employees' tenure. In view of their general
authority outlined above, the fact that with the respondent's approval,
they held themselves out to the employees as representing management,
and the fact that their anti-union conduct, as hereinafter set forth,
was consistent with that of the respondent's higher officials, the em-
ployees had just cause to believe, as in fact they, did, that Monez and
Testa were acting for and on behalf of the respondent. Upon the
entire record, we find that the respondent was responsible for the
activities of Monez and Testa.'
2. The Trial Examiner recommended that the complaint be dis-
missed insofar as it alleges that the respondent assisted TWUA. We
do not adopt his recommendation in this respect.
The record shows that during the Union's campaign for members
in the respondent's plant Monez and Testa engaged in activities de-
signed to coerce the employees to refrain from joining the Union.
Leopoldina Klein testified that Monez asked her, shortly after the
Union began organizing, if she had attended the first meeting of the
Union and that, when Klein answered affirmatively, Monez told her
that the Union was "no good." Rose Schwartz testified that Monez
also asked her if she had attended a union meeting; and that she over-
heard a conversation in which Monez told another employee that "a
few of the girls joined up and they don't know what they are doing,
and that the bosses will never sign a contract with them." Rose Gold-
schmidt testified that Monez told her, "You are a fool trusting the
Union. You won't get anything out of the Union." Other witnesses
testified to similar statements by Monez during the period of a few
weeks before the strike. 'Meanwhile, Testa was making the same type
of statements to employees in her department. 'Rose De Ninno testi-
fied that she heard Testa tell employee Tempeste, "I feel sorry for
the girls that join the Union. They will be sorry"; and Betty Safian
testified that, while she was attempting to secure the application of
Minnie de Lucia during the lunch, hour, Testa approached them and
said, "she (de Lucia) didn't have to sign (sic) the Union; that all
the girls who signed (sic) the Union would get what was coming to
them." Monez and Testa denied having made these statements and
the Trial Examiner did not resolve the conflict in testimony because
of his conclusion that the respondent was not responsible for the
activities of Monez and Testa. However, the Trial Examiner refused
'Cf. International Ass'n. of Machinists v. N. L. R . B., 311 U. S. 72, aff 'g 110 F. (2d) 29,
enf'g 8 N. L R. B. 621.
FINE ART NOVELTY CORPORATION 483
to credit them in certain other respects where he did resolve conflicts in
testimony. Since the record indicates that these statements are con-
sistent with the general pattern of conduct admittedly engaged in by
Monez and Testa in encouraging membership in the TWUA and dis-
couraging membership in the Union, and upon a full consideration of
the record, we find that they made the statements attributed to them.
The first activity of TWUA disclosed by the record occurred on
December 7, 1942, when TWUA distributed leaflets near the door of
the plant. On December 14, 1942, the Union, which for several days
had unsuccessfully sought a conference with the respondent, claimed
to represent a majority of the respondent's employees, offered its cards
as proof of such majority, and requested that the respondent enter into
bargaining negotiations. The respondent, asserting that a similar
claim of representation had been advanced by TWIJA, refused to
recognize the Union and demanded that an election be conducted by
the Board to determine which organization represented a majority
of the employees.. The Union thereupon called a strike the next day.
Monez, who, according to her own testimony, had previously told some
employees that she was not interested in unions and that no union
was necessary because "the Fine Art bosses are very good and co-
operate with the workers a hundred percent," advised the employees
who had not gone out on strike that the Union was not a "proper
union to join." She testified that "we knew we had to form a union"
and that she told the girls, "if we have to join a union, let's get in
with the right union, because I do not like the way these people outside
conduct their union, meaning the Local 45-B." Thereafter, Monez
and Testa, along with some 15 or 20 employees, went to the office of
TWUA, where a number of them signed application cards. No appli-
cation for membership in TWUA had been signed by any employee
of the respondent prior to this time. The record shows that Monez
and Testa attended another TWUA meeting on December 21.
On December 18 a meeting was held at which the respondent, the
Union, and TWUA were represented. The Union again offered its
cards as proof of its majority status but the respondent insisted upon
an election. The Union thereupon agreed to an election but TWUA
withheld its consent. Thereafter, pursuant to the suggestion of a
Field Examiner for the Board, both unions submitted their applica-
tion cards to the Field Examiner, and the respondent furnished him
with a list of employees against which to check the cards of the
unions. On December 21, the day on which the TWUA submitted
its cards to the Field Examiner, but before any report had been made
as to the results of his check, the respondent compared with its pay-
roll list certain cards presented to it by TWUA, recognized that organi-
zation as the exclusive bargaining representative of its employees, and
immediately agreed to all terms of a union-shop contract except wages.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 23, 1942, the respondent executed a written union-shop
contract with TWUA.
Thus, within a few days after the respondent had refused even to
look at the cards offered by the Union, and after insisting that only
by a Board election could the question of representation be resolved,
the respondent entered into an agreement with TWUA upon the
basis of a card check, with full knowledge of the Union's majority
representation claim, and despite the fact that a majority of its em-
ployees were even then out on a strike called by the Union. More-
over, a comparison of the activities of Monez and Testa on behalf
of TWUA, with their conduct prior to the advent of this organization
in the plant, makes it apparent that the respondent was willing to deal
only with TWUA and that it actively assisted that union to obtain
members. Monez and Testa, after having dissuaded employees from
joining the Union, instigated the movement of employees into TWUA
at a time when that organization did not have a single signed appli-
cation card. When the TWUA had secured a majority, the respondent
hastily recognized it after a card check, thus granting to it the most
powerful and valuable assistance possible.
We find that the respondent, by the activities of Monez and Testa,
hereinabove outlined, by its preferred treatment of TWUA in ac-
cepting its cards as proof of majority while declining to accept sim-
ilar proof from the Union, and by its recognition of and execution of
a union-shop contract with TWUA under the circumstances set out
above, aided, encouraged, and assisted TWUA, and that it thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. We shall, accord-
ingly, order the respondent to cease and desist from recognizing
TWUA as the exclusive representative of its employees unless and
until it is certified as such by the National Labor Relations Board.
However, since TWUA no longer exists in the respondent's plant,
and since its contract with the respondent has been abrogated by the
parties thereto, we shall not issue an affirmative order requiring with-
drawal of recognition from TWUA.
3. We agree with the Trial Examiner's finding that the respondent
has refused to bargain with the Union, but, we do not find, as he did,
that such refusal first occurred on December 14, 1942. On that date,
as the record discloses and as the Trial Examiner has found, the
Union clearly represented a majority. While we consider suspicious
the circumstances surrounding the asserted prior majority claim of
TWUA, we cannot find from the record that the respondent's conten-
tion as to TWUA's prior claim was made in bad faith. As we have
previously held,' the respondent was under no obligation to recognize
2 Matter of Sherwin Williams Company, 37 N. L. R. B. 260.
FINE ART NOVELTY CORPORATION 485
-either union, so long 'as it entertained a bona fide doubt as to which
was the majority representative of its employees. Accordingly, we do
not find a refusal to bargain on December 14, 1942, in the respondent's
denial of recognition to the Union.
Thereafter, between December 14 and 21, 1942, the respondent en-
gaged in a course of conduct which, we have found, constitutes illegal
assistance to TWUA. None of the cards submitted to the respondent
by TWUA on December 21 had been signed prior to December 14,
a fact which was apparent from the face of the cards which the
respondent inspected; they were all signed during the period of the
respondent's unlawful assistance to TWUA. Although TWUA, as a
result of such illegal assistance on the part of the respondent, was
able to secure the signatures of a majority of the employees, this does
not mean that the Union lost its majority status. An employer may
not destroy the majority status of a Union by unfair labor practices
and then rely upon the loss of majority to justify his refusal to
bargain with that Union.3
It is clear from the record, and we find, that the Union, which had
requested recognition on December 14 and 18, still sought that recog-
nition on December 21 and that it regarded its request as continuing.
The respondent's extension of recognition to TWUA and its execution
of a contract with that organization demonstrated a disregard by the
respondent of its obligation under the Act and constituted a refusal
to bargain with the Union on and after December 21, 1942 4 More-
over, on April 3, 1943, after the withdrawal of TW UA from the plant
and the abrogation of its contract, the Union again requested the
respondent to bargain with it but the respondent refused on the
ground that an election was' necessary to determine the bargaining
representative.
We find that, by extending recognition to TWUA on December 21,
1942, by entering into a contract with it on December 23, 1942, and
by refusing the Union's request for recognition and bargaining
negotiations on April 3, 1943, the respondent refused to bargain
collectively with the Union as the exclusive bargaining representative
of its employees in an appropriate unit with respect to rates of pay,
wages, hours of employment, and other conditions of employment,
and that by such refusal it interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
Because he found that the respondent had ceased operating its
business at the time of the hearing and that there was no likelihood
8 N. L. R B . v. Bradford Dyeing Association, 310 U. S 318 and N. L. R. B. v . Franks Bros.
Company , 137 F. ( 2d) 989 (C. C. A. 1).
* See Matter of Porcelain Steels, Inc., and International Association of Machinists, 46
N L R. B. 1235, enf'd N. L. It. B. v. Porcelain Steels, Inc., 138 F. (2d) 84 (C. C. A. 6).
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it would resume operations until after the war, the Trial Ex-
aminer recommended that no order be issued requiring the respondent
to bargain collectively with the Union. Since we have found that the
respondent has refused to bargain with the Union, and since it seems
likely, that it may again refuse if it resumes operations, we deem it ad-
visable to enter against the respondent a cease and desist order and an
order to bargain collectively with the Union in the event that the
respondent or its agents, successors, or assigns has resumed, or does
in the future resume operations.
4. We agree with the Trial Examiner's finding that the respond-
ent's payment of a bonus on December 31, 1942, to the employees who
had returned to work, but not to those who refused to, abandon the
strike, constituted an unfair labor practice. We find that by this
action the respondent interfered with, restrained, and coerced its
employees in the exercise of their rights under the Act. However,
we do not think it necessary, in order to effectuate the purposes of
the Act, to order, as the Trial Examiner has recommended, that the
employees who failed to receive the bonus be made whole in the
amount they would have received had they not been on strike. We
do not adopt the Trial Examiner's recommendations in this respect.
5. The Trial Examiner found that the respondent did not engage
in unfair labor practices by threatening its employees with reprisals
if they should become members of or assisted the Union, and recom-
mended that the allegation of the complaint to this effect be dis-
missed. The Trial Examiner also found, however, and we agree, that
early in December 1942 the respondent's vice president, Hochman,
asked Harold Mont if he was the instigator of the Union and if he
was in a position to take a chance like that; that about the same time
Foreman Zaum told several employees that if the Union came into
the plant the cutters would have to work harder; and that, after
the plant reopened during the strike, Foreman Bromberger told
Wolinsky, a cutter, that if Wolinsky did not return to work. he would
lose his job. We consider these statements ample evidence to support
the above-mentioned allegation. Moreover, as pointed out heretofore,
Testa told Safian and de Lucia that the girls who signed up with the
Union would "get what was coming to them." We find that these
statements were intended to, and did, convey to the employees a threat
of economic reprisals if they engaged in activity on behalf of the
Union, and that the respondent thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
FINE ART NOVELTY CORPORATION 487
ORDER
Upon the basis of the foregoing findings of fact and the entire
,record in the case, and pursuant to Section 10 (c) of the National
Labor Relations Act, the National Labor Relations Board hereby,
orders that the respondent, Fine Art Novelty Corporation, New York
City, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Recognizing Textile Workers Union of America as the repre-
sentative of any of its employees for the purpose of collective bargain-
ing, unless and until that organization shall have been certified as
such by the National Labor Relations Board;
(b) Refusing to bargain collectively with Local 45-B, United
Furniture Workers of America, C. I. 0., as the exclusive representa-
tive of all its employees, exclusive of supervisory employees, foremen,
executives, officers, clerical employees, and salesmen, in the event
that the respondent or its agents, successors, or assigns has resumed, or
does in the future resume, operations;
(c) 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) Upon request, bargain collectively with Local 45-B, United
Furniture Workers of America, C. I. 0., as the exclusive representa-
tive of all its employees, exclusive of supervisory employees, foremen,
executives, officers, clerical employees and salesmen, in respect to
rates of pay, wages, hours of employment, or other conditions of em-
ployment, in the event that the respondent, or its agents, successors,
or assigns has resumed, or does in the future resume, operations;
(b) Post immediately in conspicuous places throughout its plant,
and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices td its employees stating: (1) that
the respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a), (b) and (c) of this Order;
and (2) that the respondent will take the affirmative action set forth in
paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Second Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. GEIAxn D. REU,LY took no part in the consideration of the above
Decision and Order.
488 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Daniel Baker, for the Board.
Rothstein cE Korzenilc, by Mr. Harold Korzenik, of New York City, for the
respondent.
Mr. Harry ll'e;nstock, of New York City, for the Union.
STATEMENT OF THE CASE
Upon a first amended charge filed May 27, 1943, by Local 45-B, United Furni-
ture Workers of America, C. I. 0., herein called-the Union,' the National Labor
Relations Board, herein called the Board. by its Regional Director for the Second
Region (New York City), issued its complaint dated May 28, 1943, against
Fine Art Novelty Corporation, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint and notice of hearing were duly served upon the respondent and
the Union.
Concerning the unfair labor practices the complaint alleged in substance that
the respondent : (1) on or about December 14, 18 and 23, 1942, and at all times
since refused to bargain collectively with the Union which at all times since
December 14, 1942, has been the exclusive representative of the respondent's
employees, within a unit appropriate for collective bargaining ;'s (2) from the
latter part of November through December 14, 1942, and thereafter disparaged,
expresseed disapproval of and discouraged membership in the Union by (a)
interrogating its employees concerning their membership in and activities in
behalf of the Union; (b) urging and warning its employees to refrain from
joining, or assisting the Union: (c) threatening its employees with reprisals
if they became members of or aided the Union ; (3) from on or about December
15, 1942, and at other times assisted the Textile Workers Union of America by
counseling, urging, encouraging and soliciting its employees to join that organi-
zation; (4) after December 15, 1942, and before January 11, 1943, during a
strike called by the Union, urged at least one striking employee, to return to
work and abandon the strike, which strike had been called and prolonged as
a result of the respondent's unfair labor practice; (5) on or about December
23, 1942, entered into a collective bargaining agreement with the TWUA although
the TWUA had been assisted by the unfair labor practices of the respondent
above described, and was not the representative of the employees in the col-
lective bargaining unit covered by such agreement at the time of its execution,'
and on March 26, 1943, the TWUA notified the respondent in writing that this
contract was null and void and that the TWUA relinquished all claims and
interests therein; (6) in April 1943, threatened its employees that it would
permanently shut down its plant in preference to executing a contract with
the Union; and (7) by the foregoing acts has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
1 Occasionally the Union is also referred to as 45 -B in order to distinguish it from
Textile Workers Union of America , affiliated with the C . I. 0, hereafter referred to as the
T W UA.
21 The unit alleged to be appropriate consists of all employees "exclusive of supervisory
employees , foremen , executives , officers , clerical employees, and salesmen "
4 As later developed at the hearing , the collective bargaining unit described in the above
agreement , was substantially the same as that alleged in the complaint herein.
FINE ART NOVELTY CORPORATION 489
The respondent filed its answer dated June 7, 1943, denying all allegations
of unfair labor practices. It admitted that certain of its employees ceased
work and went on strike as alleged in the complaint, and alleged that the strike
was called by the Union. As affirmative defenses, the answer alleged: (1)
that at all times the respondent offered and now offers to consent to an election
to determine the proper collective bargaining agency for the respondent's em-
ployees, but that the Union has refused to consent to such an election; (2) that
prior to December 14, 1942, the Congress of Industrial Organizations of which
the Union is an integral part, by its duly constituted officers gave a no strike
pledge to the Government of the United States for the duration of the war ; that
at all times mentioned in the complaint the respondent was engaged on war
contracts for the United States Army of which fact the Union had knowledge;
that despite the foregoing pledge, the Union called a strike and attempted to
prevent work being clone upon the respondent's premises, including work under-
taken for the United States Army.
Pursuant to notice, a hearing was held from June 17 through June 28, 1943, at
New York City, before the undersigned, the Trial Examiner duly designated by
the Chief Trial Examiner. The Board, the respondent and the Union were rep-
resented by counsel and participated,, in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties. At the opening of the hearing, the re-
spondent's counsel took the position that the TWUA was a necessary party and
should have been served with a notice of the hearing. The undersigned ruled
that from the issues as presented in the pleadings' the TWUA was riot a neces-
sary party and under the Board's rules and regulations it was not necessary
to serve that organization with notice of hearing' At the beginning of the
hearing Board's counsel moved to amend the complaint so as to clarify its
wording. There was no objection and the motion was granted. At this time
Board's counsel moved to strike the two affirmative defenses alleged in the
answer. Respondent objected to the motion and the undersigned reserved
decision. The respondent then moved to amend the first affirmative defense in
the answer so as to allege that the respondent offered in good faith, to consent
to an election or any other form of certification by the National Labor Relations
Board. There was no objection and the motion was granted. The undersigned
now denies the motion to strike the first affirmative defense from the answer.
The allegations in the second affirmative defense of the answer are hereby
stricken, except that portion thereof which alleges that the respondent was and
is engaged in war work and that the Union was aware of that fact when it
calledythe strike. At the conclusion of the Board's main case, the respondent
moved to strike testimony previously received over its objection on the ground
that such testimony was not connected up with or binding on it. The motion
was denied. Respondent's counsel then moved to dismiss the complaint, on the
ground that there was no "credible or substantial" proof to sustain the allega-
0 The respondent in its answer did not deny or make any reference to the allegations in
the complaint that the respondent executed a contract with the TWUA and that this con-
tract was later , rescinded by the TWUA.
6 Section 51 of Article II of the Board 's Rules and Regulations states in part ; "when-
ever any labor organization , not the subject of Section 8 (2) allegations in the complaint,
is a party to any contract with the respondent the legality of which is put in issue by any
allegation of the complaint , such labor organization shall be made a party to the proceed-
ings." It is clear from the pleadings , and as later developed at the hearing , that the re-
spondent 's contract with the TWUA ii as not put In issue by any allegation in the com-
plaint, but on the contrary the complaint specifically alleged that the contract had been
repudiated by the TWUA prior to the issuing of the complaint.
i
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lions of unfair labor practices therein. The motion was denied. Respondent
then moved to dismiss the specific allegations of unfair labor practices. The
motion was denied. At the conclusion of the hearing, motions were made, to
conform the pleadings to the proof in formal matters. There was no objection
and the motions were granted. At that time the respondent moved to dismiss
the entire complaint, and separately to dismiss the 8 (5) allegations in the com-
plaint. Rulings were reserved. The motions are hereby denied except as -will
hereafter appear. At the conclusion of the hearing counsel for the Board and
the respondent presented oral argument. The parties were advised of their
right to file briefs with the undersigned after the close of the hearing. No'briefs
have been filed.
Upon the record thus made and from his observation of the witnesses the
undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Fine Art Novelty Corporation is a New York corporation with its office and
principal place of business in New York City. It is engaged in manufacturing
bedspreads, draperies, curtains, and allied products. It uses piece goods, trim-
ming, thread, and other materials. During the past year approximately 90
percent of these materials valued at over $500,000 were shipped to the respondent's
plant from points outside the State of New York. During the same period,
more than 66 percent of the finished products amounting in value to more than
$500,000 was shipped to points outside the State of New York. Fifty percent of
its production is devoted to the manufacture of mattress covers for the United
States Army!
IT. THE ORGANIZATION INVOLVED
Local 45-B, United Furniture Workers of America, C. I. 0., is a labor organiza-
tion admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint and coercion
1. Background
The respondent is a small concern employing about 136 production and main-
tenance employees, many of them women. Its plant is located on one eased
floor of a factory building in New York City. The floor is divided into three
units or lofts and a space,is also provided for offices. ' One of the two larger
lofts is used to cut mattress covers and to cut and manufacture slip covers.
It is referred to variously in the record as the slip cover department and the
mattress cover department. In the second larger loft, usually referred to as
the bedspread department, bedspreads, draperies, and mattress covers are
sewed. The third and smallest loft is used for cutting bedspreads and draperies.
Because of the nature of the work in this third loft it is closely associated in the
record with the bedspread department. The employees consist of four or five
cutters divided between the two departments. In December 1942, there were 37
sewing machine operators and 7 floor girls in the slip cover department and 67
operators and 16 floor girls in the bedspread department.
4 This commerce finding is based on a stipulation of the parties entered into during the
course of the hearing.
1
FINE ART NOVELTY CORPORATION 491
Prior to the year 1942, so far as the record discloses , there was no union organi-
zation in the plant, although the Textile Workers Union of America, made an
unsuccessful effort in 1941 to organize the employees .'
2. Organization of the Union
In the late summer of 1942, the Union started an organizing campaign among
the respondent's employees B Clarina Michelson, then an organizer but since Jan-
uary, 1943, business agent for the Union, assisted by Harold Klein and Jean
Wanda, also Union representatives, visited some of the employees' homes and
held meetings of small groups in halls and at the Union headquarters. Union
literature and cards were distributed in front of the plant several times a week
throughout the fall. The union representatives were assisted in their campaign
for members by a group of 8 or 10 employees, including Betty Safian, Mary
Ludmar, Minnie Kaplan, and others. As a result of these efforts a substantial
number of the respondent's employees joined the Union. Ort December 1, 1942,
the Union held its first open meeting which was advertised by circulars distributed
in front of the plant.
3. Anti-union statements and activities up to December 1
The respondent was aware of these organizational activities. There is un-
Contradicted evidence herein credited that Max Zaum, who in addition to being
foreman of the bedspread department was also in charge of all machinery in the
plant, in October told Minnie Kaplan when she asked for a raise, "Don't you
know there is a law. I can't give any raises now." "Go ask your girl friend, the
Union lady. She will help you."
One leaflet distributed by the Union the day before Thanksgiving, commented
on the fact that the employees of the respondent were not paid for Thanksgiving
and other holidays, and urged the employees who had not already done so, to
join the Union and ultimately secure these benefits which it stated union mem-
bers in other plants were already enjoying. During the lunch hour that day
Zaum , carrying one of these leaflets, approached a group of employees made up
of Harold Wolinsky, Fred Laserson, Irving Goodman; Betty Satian and Rose
Schwartz and said, "The Union is pretty smart in trying to organize the place."
Wolinsky replied that the Union was as smart trying to organize, "as you are
trying tp dis-organize the place." Zaum then said, "What do you people need a
union for, especially you cutters.s30 He then stated, in effect, that if the Union
came into the plant, the cutters would not benefit to any extent and would have to
work harder. Dora Rubin joined the Union on November 25. A few days later
Zaum asked her if she had signed a union card. Rose Schwartz attended the De-
cember 1 Union meeting and signed an application card. The next day Zaum
asked Schwartz if she had attended the meeting. On receiving an affirmative re-
sponse, Zaum stated that he was "very much surprised" and inquired if Schwartz
had "signed up." Schwartz denied that she had joined the Union. She then asked
Zuam if lie was anirry with her. Zaum replied that he was not and added "it
8 At that time the TWUA secured as members Theresa "Terry" Rocco, Mary Milazzo, and
Elmira Lindo, who were employed by the respondent at the time of the bearing.
8 Abraham Flockman, vice president , secretary and general manager of the respondent,
testified that in August and September 1942, Max Zaum, foreman of the two bedspread
departments , reported to him that a TWUA representative had told Zaum that the TWUA
had "a few members in the shop " Zaum, although available , was not called as a witness.
This hearsay testimony is therefore disregarded.
11 Wolinsky and Goodman were cutters.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doesn't make any difference if the girls want to sign up, you can not stop.
them." 11
About the middle of November 1942, Irving Boxenbaum, the respondent's
president, asked Shipping Clerk Fred Laserson during working hours to ascer-
tain from Mary Ludmar if she was the instigator of the Union. Laserson
demurred at first, but Boxenbaum insisted, whereupon , Laserson made the
inquiry of Ludmar and upon receiving her response that she was not the insti-
gator of the Union, so reported to Boxenbaum.n
A number of employees in the bedspread department' testified that during
this organizational period and up to and including a day or two after the
December 1 meeting, Clothilde Monez, characterized by some of these- em-
ployees as their "forelady," questioned them about their Union membership
and attendance at Union meetings, and disparaged and endeavoured to discourage
the employees' interest in the union. Monez denied this testimony. As here-
after found li while Monez exercised some minor supervisory functions, she was
not sufficiently identified with management as to make the respondent respon-
sible for her activities. It is therefore unnecessary to resolve these conflicts
as to Monez's activities and statements.
4. December 4 conference ; early closing on December 7; the Union meeting
On December 4, the Union representatives, Mrs. Michelson and Harold Klein,
called at the office of Abraham Hockman, the respondent's vice president, secre-
tary and general manager, and complained that the respondent's supervisors
were attempting to discourage the employees from joining the Union15 Hock-
man replied that he had heard of no disparaging remarks, but stated that
he would investigate and if found true, would ask the supervisors to desist
from such practices.16
At the December 1 meeting of the Union heretofore referred to, plans for a
meeting on December 7 were discussed. On December 4 a leaflet was dis-
tributed in front of the respondent's plant announcing that the representatives
of the Union had met with the respondent on December 4, and that there
would be an important meeting of the Union in a nearby hotel on December 7,
"right after work." The regular quitting time for the employees 'was 5: 15
p. in. and the above Union meeting was planned for 5:30 p. in. However, at
4 p. in, on December 7, without previous notice to the employees, the power in
•
11 The above findings as to Zaum's activities are based on the uncontradicted testimony
of Kaplan, Harold Wolinsky, Safian, Rubin, and Schwartz. Zaum did not testify. He was
employed by the respondent at the time of the hearing and there was no showing of his
unavailability.
12 Boxenbaum did not testify and there was no showing of his unavailability. The above
testimony of Laserson was uncontradicted.
13 The employees so testifying were Leopoldina Klein, Rose Schwartz, Bella Liebman,
Florence Hale and Rose Goldschmidt.
14 Subdivision III-A-6, infra.
ii Michelson testified in this respect that Klein told Hockman that the employees were
complaining because "foreladies " Monez of the bedspread department and Filomina ("Fan-
nie") Testa of the slip cover department were discouraging union membership . There Is no
evidence of any attempt to discourage union memberabip up to this period of time by
Testa Klein, who was in the Aimy, did not testify. It is therefore found, as testified to
by Hockman, that the Union representatives complained that there was interference by
supervisors of the respondent, but that they did not specify the names of the supervisors.
','In this connection Hockman's testimony is credited that lie assumed the complaints
were against Max Zaum, foieman of the bedspread department, and Solomon Bromberger,
foreman of the slip cover department, who he claimed, were the only supervisors in the
respondent's employ, and that immediately after the above conference he warned both
Zaum and Bromberger not to interfere with.Union activity.
FINE ART NOVELTY CORPORATION 493
the slip cover department was shut off by Fannie Testa who told the employees
therein that there was no more work that day. As the employees left the
building at 4 o'clock organizers for the TWUA were at the exit of the building
distributing leaflets for that organization. As a result of this early closing
without warning or notice the Union officials precipitously advanced their
meeting hour to 4: 30 p. in. in order to reach the slip cover employees. The
Union contends that the early closing of this department without prior notice
was not justified as there was plenty of work and that its purpose was to dis-
courage attendance at the union meeting and to assist the TWUA. The respond-
ent's records show that it was not unusual for the slip cover department to
close down about an hour earlier than the rest of the plant in the afternoons,
and that for the rest of the week following Monday December 7 that depart-
ment closed early each afternoon. Hockman testified that the early shut-down
the week beginning December 7 was because of a shortage of materials and
denied that the TWUA officials had any prior knowledge, so far as he knew,
of the contemplated early shutdown on December 7 or that he knew their
representatives were at the exits of the plant. Although the failure of the
respondent to give the employees in the department notice of the early closing
on December 7, raises some suspicion as to the employer's motive, it is found
that the early shut-down was for business reasons and not an effort to dis-
courage attendance at the Union meeting. It is further found that the respond-
ent had no knowledge of the presence of the TWUA organizers outside the
plant on that afternoon.
5. December 8 conference : events to December 12
As above detailed the union meeting on December 7 convened an hour earlier
than originally planned. At the meeting benefits to be derived from organizing
were discussed as were certain alleged unfair labor practices of the respondent,
including the early shut-down of the slip cover department on December 7.
A proposed contract that had been prepared as a result ,,)f a discussion at the
December 1 meeting was read and a committee of about 12 employees was
elected for the purpose of calling on Hockman the next day to request that be
negotiate a contract with the Union and to protest against the unfair labor
practices. The next day, December 8, at noon, Mrs. Michelson, Harold Klein,
and Jean Wanda, accompanied by this committee of union employees met
Hockman in his office. Klein acted as spokesman and told Hockman that the
Union would like to arrange to meet the next day, December 9 to negotiate a
contract and that the committee present had been elected for that -purpose.
Hockman agreed to meet with the committee but stated that it could not be
the next day as his associate, Irving Boxenbaum, 17 was ill and his lawyer,
Harold ,orzenik was out of the city. December 10 was then set tentatively
for this conference and Hockman agreed to notify the committee of the exact
hour or the proposed contract. During the meeting, Klein also told Hockman
that the unfair labor practices of the respondent were continuing and in-
timated that the slip cover department had been closed down early the day
before in order to interfere with the activities of the Union and to assist.TWUA.
Hockman told the committees that the early stoppage of the department was
his business and was not in his opinion an unfair labor practice.18
17 Irving Boxenbaum was president of the respondent.
1B The above findings as to the December 8 conference are based on a reconciliation of
the testimony of Michelson and Hockman. Although the latter made no mention in his
testimony of any discussion at this meeting of the unfair labor practices and the closing
incident, he did not deny that such discussion took place.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next day, December 9 at noon, Mrs Michelson was in the plant and asked
Hockman if he could let her know when he would meet with the committee.
Hockman replied that he could not tell exactly but it was only a matter of a
few days, as soon as he could hear from his attorney. That afternoon Hockman
talked to his attorney relative to the time for this conference but the latter
was about to leave the city and was unable to set the time. Korsenik, however,
told Hockman that he would wire him in a day or two relative to the Union
conference. Hockman did not meet with the Union representatives on December
10 nor did he advise them of the arrangement he bad with Korzenik On De-
cember 10 Alexander E. Racolin, attorney for the Union mailed to the respondent
a letter protesting against interference in the Union's activities by, "certain
supervisory employees," in the face of a promise to stop them.
In the meanwhile on December 9, the Union prepared and distributed a
pamphlet advising the employees that the committee had met the day before
with Hockman and that a conference had been arranged for Thursday De-
icember 10 to discuss the proposed contract. On December 11, the Union pre-
pared and distributed another leaflet in front of the plant calling a union
meeting for that night and stating that Hockman had not met with the com-
mittee the previous day as he had agreed. At the meeting that night the failure
of Hockman to set a date for a conference was discussed, as were the alleged
unfair labor practices of the respondent. It was decided that something
drastic should be done in order to impress the respondent with the Union's
representation in the plant. A strategy committee was thereupon elected with
instructions to meet at the plant before working hours on Monday, December 14,
which was the next regular working day, and to request all employees to attend
an important union meeting that morning near the plant, instead of reporting
for work, the idea, being, as expressed by Mrs. Michelson, that if they could
get a majority of the employees to go to the meeting instead of to work, Hockman
would be impressed and would negotiate a'contract.
Early Monday morning, December 14, the strategy committee 10 accompanied
by Mrs. Michelson met at the plant before working hours. They displayed two
large signs advertising the meeting to the workers as they appeared and per-
sonally exhorted them to attend, the meeting scheduled for 8: 30 that morning
instead of reporting for work. As a result only about 15 or 20 employees reported
for work on the morning of December 14. Most of those who did not go to work
went to the union meeting which continued through most of the day. During
the course of the day a number of new union members were obtained. On the
morning of the 14th the union meeting selected a new committee to wait on
Hockman.
There is testimony that during this period Fannie Testa, described by some
of the witnesses as a "forelady" in the slip cover department, also attempted to
discourage the employees in that department from joining the Union R0 Testa
denied that she ever spoke to anyone about the Union. Testa, like Monez here-
tofore referred to, exercised some minor supervisory functions, but as hereafter
found 21 they were not such as to render the respondent responsible for her activi-
ties. The conflict in the testimony relative to Testa's activities is therefore not
resolved.
19 The committee consisted of Harold Wolinsky, Betty Safian, Lucy Sporaga, Rose Devoe,
Adele Bund , Christine Tolbert, Mary Ludmar , Minnie Kaplan, Thelma Groat and several
others
Rose De Ninno , Harold Monte , and Betty Sagan so testified.
11 Subdivision III-A-6, infra. - ,
FINE ART NOVELTY CORPORATION 495
According to Harold W. Monte, one of the respondent's cutters, Hockman in
early December came to him at work and inquired if he was the instigator of
the Union and if he was in a position to take a chance like that. Monte denied
that he had started the Union in the plant and told Hockman that he would not
give any information about any of the employees in the Union. Hockman then
inquired about Monte and his wife and how they were getting along. In re-
sponse to this inquiry Monte indicated that he was having financial difficulties
due to his low salary and asked Hockman to sell him a bedspread on time.'
Hockman then gave Monte one of his best bedspreads saying that he felt hd
owed him an "additional wedding present." Hockman admitted giving Monte
a bedspread but fixed the time in September or October, "before we closed our
samples." He denied that he had asked Monte if he was the instigator of the
Union. Hockman did not explain the circumstances of giving the bedspread,
except to state that he had, on occasion, given other employees bedspreads when
requests had been made. In view of the general antagonistic attitude toward
the Union shown by the respondent, as hereafter appears, it is found that Hock-
man made the statements attributed to him by Monte.
6. Employee status of Monez and Testa
Inasmuch as the Board contends and the respondent denies that Monez and
Testa are supervisors, it is advisable that the status of these two employees
now be determined.
Monez has been employed by the respondent for about 9 years in the bedspread
department under foreman Zaum. In this department the sewing machines
were on an assembly line, with each operator performing certain sewing functions
as the material went from one machine to the next. The floor girls checked the
work performed at each machine and finally the completed article. Up to the
year 1941 Monez operated one of the machines. At that time, because of her
familiarity with all the machines and the work in the department she was
selected to assist Zaum In providing the operators with the proper pieces of
material that had been previously cut by the cutters. Under the new arrange-
ment when the sewing processes were completed and checked Monez piled the
finished articles on appropriate shelves. Under instructions from Zaum she
notified all the employees in the department when there was no work or over-
time work. She serviced the machines. In the event of a major breakdown
of a machine Zaum was called to put the machine in order, either by the par-
ticular operator or by Monez. She instructed new girls if she had the time,
but other experienced operators also instructed new girls in the work. A num-
ber of the operators sand Cutter Harold W. Monte testified that Monez was
considered a supervisor or forelady. Florence Hale and Geoanna Jenkins each
testified that when she desired to take off from her work she secured the per-
mission of Monez. Anna Jenkins testified that on one occasion she took time
off without obtaining permission and was reprimanded by Monez. Monte and
A. Jenkins testified Monez criticized the employees' work and conduct. All em-
ployees in the department, except Zaum, were paid on an hourly basis. The
weekly pay ranged from $17 to $20. Monez received $23 a week. However,
Dorothy Pascal, an operator in the respondent's employ about 14 years, received
a Hockman was very friendly with Monte and at the time of the latter's marriage about
a year previous to this talk on behalf of the respondent, gave him a $25 wedding present.
29 Bella Liebman, Rose Goldschmidt , Rose Schwartz , Anna and Geoanna Jenkins, Flor-
ence Hale, Dorothy and Mary Thomas and Minnie Kaplan.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$26 a week. Another operator, Cecelia Barsky, received $24 although she had
been with the respondent only about 2 years. However, N1onez was paid for
vacations and holidays and received a full day's pay whether she worked the
full 8 hours or not. None of these benefits were enjoyed by the other employees
in the department.'
Although Monez denied that she was a forelady or supervisor she admitted
that on occasion the employees came to her for instructions. She denied that
she granted the employees time off or discriminated or criticized them. Under
all the circumstances the denials of Monez that she ever granted time off are
not credited and it is found that she did grant the employees time off from their
work, criticized the work and disciplined the employees, and was regarded by
the employees as identified with management. So far as the record discloses
Monez was in no way responsible for production in the department. She had
no authority to hire or promote or recommend such action. As previously found,
her foreman, Zaum, did not testify. Monez testified she had no authority to fire
or to recommend such action. Hockman corroborated her in this respect. The
only evidence to the contrary is the following incident: on one occasion, about
May 1943, a colored floor girl named Frazier and a white girl operator named
Rindler got into an argument about some work while Monez was present. Frazier
slapped Rindler. During the altercation Hockman came into the department.
Two colored girl operators, Geoanna Jenkins and Dorothy, Thomas testified as
to this incident. Jenkins testified that she was sitting next to Frazier and after
the slapping incident Zaum took Rindler to the rear of the department and
Monez in the presence of Hockman went over to Frazier and said, "Get out ; we
don't have that in here, don't have any girls slapping girls,"; that Zaum then
returned, got Frazier her check and the latter left. Jenkins testified that at
the time of the discharge Hockman and Monez were about 5 feet apart and about
30 feet from where she was working near Frazier ; that she was watching the
"whole thing" and "didn't see" Hockman say anything at the time of the dis-
charge. Thomas testified that she was directly across from Frazier; that Monez
in Hockman's presence came over and told Frazier to "get out," and repeated it
when Frazier was a little slow in leaving ; that there was considerable loud
talking at the time in the department but she could not distinguish what was
said and that she did not know whether Hockman talked to Monez at the time
the latter asked Frazier to leave. Thomas in her testimony made no mention
of Zaum's presence at the time during the incident. Monez testified that Rindler
shrieked after she had been struck and Hockman came into the department ; that
Monez then walked over to Frazier and said, "Why did you hit her?" and Frazier
replied "I hit her because she told me to shut up," whereupon Monez told Frazier,
"You had no business hitting her. You had a right to tell her to shut up, but not
to hit her ;" that at that time Hockman said "Get her out of here. She is fired,"
whereupon Monez told Frazier to "go on" and Frazier went to the office. Monez
in her testimony made no mention of the presence of Zaum. Hockman did not
testify as to the incident. Lacking positive testimony that Hockman did not
speak to Monez at the time of the discharge, Monez's explanation is accepted as
the more reasonable, and it is found that Hockman ordered Frazier's discharge.
It is further found that Monez had no independent authority to discharge or
effectually recommend discharges.
Testa occupied a similar position, under Foreman Bromberger in the slip cover
department, as Monez did in the bedspread department. She distributed the work
24 As will hereafter appear , the respondent on December 31, 1942, paid all the employees
then working a small cash bonus ranging from $5 to $15, depending on the type of work
performed during the preceding 12 months. Monez received a bonus of $22. Pearl Gold-
berg, an operator , received $18.
• TINE ART NOVELTY CORPORATION 497
to the operators, took it away and when completed told the operators about
short,working periods and about overtime. She usually turned the power on
and off at starting and quitting time when the gong sounded. She broke in new
girls and the operators looked to her for instructions particularly during Brom-
berger's absence. Numerous employees 26 in the department testified variously
that Testa-was their forelady, criticized their work and conduct, notified them of
special working hours and gave them permission to take time off. For a while
in the summer of 1942, Testa was absent from the plant. Her work was taken
over by operator Dottie Chernoff. On Testa's return to work Chernoff informed
Betty Safian that "her old forelady" was coming back. Testa told cutter Harold
Wolinsky who worked in both the slip cover and bedspreild departments, on
two occasions, that she was a forelady. On another occasion, Wolinsky heard
her say that she was "in charge" of the department. Although Testa denied
that she criticized the work and conduct of the operators or made the statements
attributed to her by Wolinsky and Saflan, her denials are not credited under the
circumstances, and it is found that Monez criticized the work and conduct of
the operators and represented herself to be in charge of the operators. Ac-
cording to Betty Safian, on one occasion a girl, whom Safian identified only as
May, objected to taking orders from Testa, whereupon the latter reported the
matter to foreman Bromberger and the latter told May, in Safian's presence,
that she had to take orders from Testa the same as he had to take orders from
"the boss " Bromberger denied making this statement. It is clear that Testa
did have some limited authority. It is therefore found that Bromberger told
May that she was expected to take order from Testa. Testa receives $28 a week,
is paid for holidays and vacations and for a full day, regardless of whether she
puts in 8 hours. The week of December 31, 1942, she received a cash bonus of
$25. The most any one else in the department received was $15. The operators
received $18 to $22 a week depending on length of service but none of the other
benefits above described26 Testa came to the respondent 4 years ago as an
operator. She has held her present position approximately 2 years, with the
exception of 3 months in the summer of 1942 when she was away. She is not
responsible for production in her department nor can she hire or discharge or
effectively recommend such action.
Neither Monez nor Testa are responsible for the production in their respective
departments. They have no authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of the employees or effectively to recom-
mend such action. As hereinafter found 2' they are properly within the appro-
priate bargaining unit of production and maintenance employees. It is therefore
found that the employee status of both Monez and Testa is such that the re-
spondent is not responsible for their activities28
B. The refusal to bargain ; other interference, restraint and coercion
1. The appropriate unit
The complaint alleges that all employes of the respondent exclusive of "super-
visory employees, foremen, executives, officers, clerical employees and salesmen"
constitute a unit appropriate for the purposes of collective bargaining At the
hearing it was stipulated that the above unit was appropriate, but the respondent
emphasized that it regarded the terms "supervisory employees" and "foremen"
25 Doia Rubin , Celia Maskowitz , Bessie Jenkins, Rose De Ninno, Marie Leon, Sidney
Taylor, Betty Safian and Comather Long
3B The floor girls receive from $16 to $20 a week.
Subdivision III B , infra.
Ts Cincinnati Chemical Works, etc ., Dec. July 2, 1943 , 51 N. L . R. B. 461.
565900-44-vol. 54-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as interchangeable and not separate categories .29 This is essentially the same
unit as was covered by the contract entered into December 23, 1942, by the re-
spondent and the TWUA, hereinafter discussed.
It is therefore found that at all times material herein all employee:;
of the respondent exclusive of supervisory employees, foremen, executives,
officers, clerical employees and salesmen constituted and they now constitute
a unit appropriate for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other conditions of employment
and that said unit insures to the employees of the respondent the full benefit
of their rights to self-organization and to collective bargaining and otherwise
effectuates the policies of the Act.
2. Efforts to obtain recognition and to bargain
During the course of the union meeting on the morning of December 14 a
committee of employees were selected to call upon Hockman This committee
of five or six striki'rig employees accompanied by Michelson and Klein conferred
with Hockman in the plant at noon that day. Klein acting as spokesman told
Hockman that the committee represented the employees and that they wanted
to negotiate a contract without delay ; that since a great majority of the employees
were at the union meeting and not at work, it was clear that the Union represented
a majority of the employees Hockman replied that his associate, Irving Boxen-
baum, was still away but that he had been advised that the respondent's attorney
Korzenik was in town Hockman then phoned Korzenik in the presence of the
committee and an appointment was made with the committee for 4 p. in. that
day at the attorney' s office.
At 4 p. in. Michelson and Klein accompanied by the committee augmented by
a few additional employees met with Hockman and Korzenik at the latter's office.
Klein told Korzenik that the respondent's employees wanted to negotiate a con-
tract without delay and called attention to the large number who had partici-
pated in the walk out that day as substantial proof of majority representation.
He also stated that the committee had union application cards of a majority of
the employees. Korzenik replied that in his judgment the Union was very
irresponsible in causing the work stoppage, after the national officers of their
union and other national organizations had made a no-strike pledge to the
President of the United States, particularly as the respondent was then engaged
partly in war work. Klein replied that they could not wait any longer as the
workers were impatient, and mentioned the previous complaints to Hockman
about the interference of supervisors He further stated that the unfair labor
practices were continuing, and cited as an example the 4 o'clock closing of the slip
cover department, the presence downstairs at the exits of oiganiz' rs for the
TWUA and the interference with the scheduled meeting of the Union on Decem-
ber 7 Korzenik then asked how inany membership cards the Union had and
Klein produced 78 cards Several additional cards were handed to Klein by
other members of the committee Korzenik stated that the respondent had been
approached by the TWUA who also claimed to represent the employees 30 and
29 As heretofore appears, the respondent's position is that supervisory employees included
only the two foremen The Board contended that Monez and Testa were " foreladies" and
"supervisors." As heretofore found , neither Testa nor Monez are supervisors for whose
acts the respondent is accountable , and both might properly be included in a unit consisting
of the production and maintenance employees , under the Board 's decisions
30 Hockman so testified Michelson, Wolinsky and Safian all testified that the only men-
tion of the TWUA at this meeting was in connection with the statement by Klein about
the organizers of that union being present at tbe,exits of the plant on December 7 Hock-
man further testified that on the morning of December 9, Sam Baron, lepiesontative of
FINE ART NOVELTY CORPORATION 499
that in order to settle the dispute the Board would have to investigate the matter
and certify which union had a majority after an election. In the meanwhile he
suggested that the striking employees return to work . Klein refused to accept
the suggestion , stating that because of the respondent 's unfair labor practices,
which were continuing , such an election would necessarily be unfair to the Union
Klein then proffered approximately 80 union cards to Korzenik with the sugges-
tion that he check the names against the respondent 's pay roll . Korzenik re-
fused the offer stating that he did not think the cards adequate proof under the
circumstances . Hockman then suggested that the employees engaged on govern-
inent contracts return to work. Klein agreed to let Hockman know the next
clay about this alternative proposal, but did not do so." The meeting then
broke up.
It is found that on December 14, the respondent refused to accept the Union's
card showing as proof of majority on the stated ground that the TWUA at that
time was also claiming a majority.
3. The strike ; TWUA activities
On December 15, the Union meeting reconvened at 8: 30 in the morning.32
The committee reported the results of its conference at Korzenik's office the
day before and the refusal of the respondent to recognize the Union, whereupon
the meeting voted unanimously to strike, effective immediately Three pickets
were placed at each of the exits to the plant and a committee consisting of
Michelson and Wolinsky and one or two others waited upon Hockman at noon
and informed him that the plant was on strike. Shortly thereafter, under
Hockman's instructions, the plant closed down because of the strike.
On December 15 the Union filed charges at the Board's Regional Office,
alleging a violation by the respondent of Section 8 (1) and (5) of the Act.
After the plant closed down on December 15, at about noon the 15 or 20
employees who had worked up to that time including Monez and Testa and
headed by Dorothy Pascal, one of the old TWUA members heretofore referred
to, adjourned to the TWUA headquarters and most of them signed applications
for membership in that organization at that time.
the TWUA , telephoned Hockman that the TWUA represented the employees and asked for
a conference ; that he told Baron that his associate was sick and he did not know whether
he could reach the respondent's attorney He admitted that he said nothing to Mrs
Michelson at noon on the 9th about the TWUA claim . Korzenik did not testify , stating
in the record that as he was appearing as attorney he did not think he should do so. As
will later appear Baron wrote the respondent on December 15 asserting the TWUA repre-
sented the employees and asking for a meeting to negotiate a contract . Baron said
nothing in this letter about a previous talk with Hockman. However on receipt of a
letter from Korzemk dated December 16 acknowledging Baron's previous letter and stating
that the issue of representation would have to be "resolved" as 45B also claimed to repre-
sent the employees Baron wrote Korzenik on December 17, asserting that on December 9
be had telephoned Hockman claiming that TWUA represented the employees and requested
a conference ; that Hockman agreed to call hum but did not . Although the matter is not
tree from doubt in the light of Hockman ' s failure to mention the TWUA claim to Michelson
on the 9th , or on the morning of the 14th and Korzenik 's failure to mike any mention of
any previous claim of TWUA when he acknowledged Baron ' s December 15 letter , never-
theless, in view of the corroboration of Hockman by the Baron letter of the 17th , at least
to the extent that the TWUA had voiced a claim of representation to the respondent, prior
to December 14, Hock-man 's testimony that the Union was advised of the TWUA claim on
December 14 is accepted
81 Although no mention was made of this alternative proposal in the testimony of the
Board ' s witnesses , this testimony of Hockman was not denied and is therefore credited
32 The December 14 meeting adjourned in the afternoon without waiting for a report fioin
the conference committee Few, if any , of the employees who had walked out on Monday
reported for work Tuesday morning , December 15.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated December 15, 1942, Sam Baron, assistant general manager
of the TWUA wrote the respondent as follows :
GENTLEMEN:
Please be advised that the Textile Workers Union of America represents
your employees for the purpose of collective bargaining, and requests that
negotiations be undertaken for the purpose of negotiating a collective-bar-
gaining agreement.
On December 16, Korzenik answered this letter as follows :
DEAR SIR :
We have your letter of December 15th advising our client, Fine Art
Novelty Corp, that your union represents its employees, for the purpose
of collective bargaining.
We regret that we cannot enter into negotiations with you at this point
because we have no basis for knowing the extent of your representation.
As you probably are aware, our client is even now being subjected to a
strike called by another Union claiming likewise to represent its employees.
We must ask that this issue of representation be- resolved before we
can undertake a deal with you or with any other union.
On Decemer 17, by letter, Baron replied to Korzenik's letter and stated that
the TWUA had been conducting an organizational campaign for several months
and represented a majority of the respondent's employees ; that he had tele-
phoned Hockman on December 9 to the effect that TWUA represented a major-
ity and requested a conference; that Hockman agreed to phone him ; that he
waited until December 15 for a reply, but received none ; that he was then
advised that 45-B had called a strike and had "forced the majority of the
workers whom we represented to cease working ;" and that he had written the
respondent on December 15 "renewing" his demand.
4. December 18 conference ; the arrangement for a card check
On December 18 at 3 o'clock in the afternoon a conference of parties involved
called by Victor A. Pascal, the Board's Field Examiner, convened at the Board's
regional office in New York City. The Union was represented by Alexander
Facolin, its then attorney, Harold Klein, Mrs. Michelson, Jean Wanda, or-
ganizers, and a number of the employees including Harold Wolinsky; Hockman
and Korzenik represented the respondent. Mr. Lipsig, an attorney, represented
the TWUA. Racolin objected to the presence of Lipsig but Pascal stated that
Lipsig was there at his invitation. After a statement by Klein rehashing the
two previous conferences with Hockman by" the Union committee and the offer
he had made to Korzenik on December 14 to submit the union cards for a check,
Racolin offered again to prove the union majority by a check of its cards against
the respondent's pay roll. Korzenik objected to this procedure on the ground
that such a card check would be insufficient proof of majority, and stated that as
there were two competing unions, the proper -procedure was to have an election
to which the respondent would consent. At this point the union representatives
retired and after conferring among themselves, Racolin returned and announced
that the Union would consent to such an election providing it was held imme-
diately. Lipsig on behalf of the TWUA refused to agree to either a card check
or an election. Pascal then suggested that he be given a pay roll of the re-
spondent and the cards of both unions for the purpose pf a cheek by him to ascer-
t
FINE ART NOVELTY CORPORATION 501
tain which of the two unions had a majority. This suggestion was also opposed
by Lipsig. Without reaching any decision, the meeting adjourned.33
Although as stated above, no agreement was reached by the parties on December
18, Koizenik did provide Pascal with a list of the respondent's employees up to
the time of the strike. The record is not entirely clear, but it appears that at
that time, or shortly thereafter, Pascal was also given the union application
cards. In any event Pascal had the list and the union cards in his possession
on December 21, when at about 3 o'clock in the afternoon Baron and a 141r.
Cresanti, representatives of the greater New York Joint Board of the TWUA
called upon him, accompanied by a committee of the respondent's employees.
They exhibited to Pascal a group of 74 TWUA application cards with signatures
attached thereto, and also another group of cards which were represented to
be copies of the original cards. In the presence of the committee Pascal com-
pared the names on the duplicates with the apparently genuine signatures on
the originals. He satisfied himself they were copies. Although requested by
Pascal, the TWUA representatives refused to leave the original cards with him,
stating that they had an appointment with Korzenik that afternoon and desired
to bring the original cards to the latter's office and submit them to Korzenik.4
5. Representation by 45-B of a majority in the appropriate unit
The number of employees exclusive of supervisors at the time of the walk-out
on December 14 was 137. A count of the application cards received in evidence
from the Union show that on December 14, 1942, the Union had 84 members among
the respondent 's employees . In addition there is evidence undisputed and
credited that three employees signed cards on or about December 7, and these
cards were included in the group presented to Pascal on December 18, but were
mislaid and lost . On December 15 another card was signed and another one on
December 17. Although only approximately 80 of these cards were proffered to
the respondent on December 14, the number submitted still represented a
majority in the Union . At that time the respondent through its attorney defi-
nitely refused to examine the cards and stated that it did not consider cards as
sufficient proof of membership in view of the representation claim of TWUA.
On December 18 it took the same position although all the cards herein referred
to were proffered . In this connection it is noted also that on December 14 the
Union had given proof to the respondent of its strength among the employees
when the latter refused to go to work in order to attend the union meeting.
The respondent at no time questioned the genuineness of the signatures on the
cards. The undersigned finds that on December 14, 1942 the Union was the duly
designated representative- of a majority of the employees in the aforesaid
appropriate unit and that by virtue of Section 9 (a) of the Act was the ex-
clusive representative of all the employees in that unit for the purposes of
collective bargaining with the respondent in respect to rates of pay, wages, hours
of employment and other conditions of employment"
s9 Findings as to what transpired at the December 18 conference are based upon a
reconciliation of testimony of Michelson. Wolinsky, Heckman and Pascal.
3; Pascal checked the names on the copies of the TWUA cards left with him and also
the names appeal uig on the original cards of 45-B in his possession He testified that be
found that TWUA did not represent a majority and that 45-B did represent a majority.
However, the results of this check were not told by Pascal to TWUA until December 29.
Pascal admitted that he was confused by the misspelling of 7 or 8 names on the TWUA
cards and for that reason rejected these cards , although it later developed that these
persons were actually employed by the respondent
35 That the union's majority continued after December 14, is hereinafter found in the
Concluding Findings.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. December 21 conference between TWUA and the respondent ; the contract;
plant reopen ; Bromberger -Wolinsky talks.
At about 3: 30 in the afternoon of December 21, Baron and Cresanti accom-
panied by the committee of employees met with Hockman and Korzenik in the
latter's office. Baron stated that the TWUA wanted to negotiate a contract and
claimed that the TWUA had 79 members among the respondent's production
and maintenance employees Korzemk suggested that in view of the fact that
45-B also claimed to represent a similar amount and there were only 136 em-
ployees in the unit, it would be advisable to have the Board certify the appropriate
bargaining agency. Baron refused to agree to an election, stating that TWUA's
experience in settling disputes in this manner with 45-B had been unfortunate.
After further discussion and some assurance by Baron that if the respondent
signed a contract with TWUA most of the employees would return to work,
Hockman agreed to deal with the TWUA, provided that organization could show
by their cards that they represented a majority of the production and main-
tenance employees." Korzenik took the 79 cards that Baron proffered and,
after eliminating 5 duplicates, read the names on the remaining 74 cards. Hock-
man checked the names against a typewritten list and announced that all the
74 names represented the employees of the respondent. Terms of the contract
were then gone into in considerable detail and all items were agreed upon except
a wage increase demand. The next day this item was settled over the telephone
and upon December 23 a contract was executed by the respondent and the TWUA.
The contract contained a union shop clause and provided for the check-off of
dues.97 The contract covered all the employees of the respondent except sales-
men, clerical help, the head shipping clerk, Fred Laserson u and foremen Max
Zaum and Saul Bromberger.
After the respondent and the TWUA had arrived at the terms of the agree-
ment on December 22, Hockman caused to be mailed a mimeographed letter to
all the respondent's employees, as follows : -
No doubt when you receive this letter, you will have been informed by
your union, T. W. U. A. that all differences with our employees have been
settled amicably.
You are accordingly advised that we will commence operation as usual
on Monday morning, December 28, 1942. Please report promptly at your
usual hour.
We have lots of work to do to make up for lost time and we will expect
your fullest cooperation.
With cordial regards and best wishes for a happy holiday, we are,
Sincerely yours,
FINE ARTS NOVELTY CORPORATION
MAX ZAUM (Signed)
At the time of the signing of the contract on December 23, the respondent
furnished the TWUA representatives with a list of the addresses of all of its
3OHockman testified that before making this decision lie conferred privately with Kor-
zenik and also called up Irving Boxenbaum ; that their decision was arrived at because
(1) the TWUA represented some of the more skilled workers of the factory and those
who had been honest with the respondent; and (2) while both unions were trying to make,
a contract 45-B had struck without warning while the other did not.
37 By letters dated December 23'and 28 the parties agreed that the contract should be
amended so as to provide for individual check-off authorizations, and unless secured within
ninety days after December 28, 1943, the check-off would lapse as to the individual employee.
38 A clause provided that Laserson could join TWUA "if he desires ' and thereby come
under the contract.
FINE ART NOVELTY CORPORATION 503
employees.' On December 24, the TWUA sent to all the employees a mimeo-
graphed letter signed by Baron telling of the contract it had secured, and stating
that the plant would reopen on Monday December 28, at which time "all workers
are to report-for work." At least some of the employees received both these
mimeographed letters in the same mail.
During the period from December 15, 1942, to at least the time of the signing
of the contract, December 23, 1942, both unions continued their efforts to secure
new members among the respondent 's employees.
On the morning of December 28 the respondent's plant reopened but the strike
continued. Approximately 52 employees reported for work on the 28th4° After
the contract with TWUA had been signed and the plant had reopened Bromberger
told Wohnsky, according to the latter, that the respondent had one cutter work-
ing and anticipated getting another and that if Wolinsky did not return to work
he would loose his job; that he replied that if he did return he would have to sign
with TWUA and have his dues checked off under the terms of the contract ; that
Bromberger assured Wohnsky that he would see to it that he remained working
without joining the TWUA or having dues for that organization checked off his
pay. Bromberger did not specifically deny the above conversation but admitted
that he met with Wolinsky on occasion and that they were good friends. Wolin-
sky's testimony is therefore credited.
7. The bonus ; the strike ends.
On the afternoon of December 31, as had been the custom for several years,
the respondent held a party at the plant Co which all employees then working
were invited. During the course of the party the respondent distributed money
to each of the employees ranging in amounts from $5 to as high as $25, depend-
ing on the length of service and the type of work done by the particular em-
ployees. The year before the respondent had given money in somewhat similar
amounts to its employees at the party. In years prior to 1941 the respondent
presented gifts of perfume and other articles to its employees but no money.
None of the striking employees excepting those who had returned to work by
the 31st of December received any gift or bonus from the respondent in 1942.
Hockman testified that similar amounts were given to the office employees in
1942. The Board contends that this contribution of money to the employees was
a bonus. Hockman, when originally called by the Board as a witness,'referred
to the contribution t,a the employees as a bonus It was not until his attention
^ A number of the union employees testified that during the period from December 15,
when the strike started , to about December 20, they were approached by other employees
or TWUA representatives at their homes and solicited to join the TWUA, although none
of these representatives or the employees knew their hone address The Board contends
that under all the cncunistances the reasonable inference is that the respondent furnished
the TWUA with addresses of striking employees before December 23 in order to assist
that organization This inference would be justified if the conclusionary statements of
some of these striking employees who were solicited that "no one but the Company knew
their address" be accepted as the fact . The undersigned does not believe that no one
but the company knew of the addresses of these employees. Furthermore Theresa Rocco,
one of the solicitors , testified that she leccived the address of one of the striking employees
through a mutual acquaintance It is found that there is no evidence that the respondent
furnished the TWUA with the addresses of its employees prior to December 23, 1942.
"Various witnesses testified that the number of employees returning to work on the
28th was about 60 The above computation is based on the number of old employees
who received bonuses from the respondent on December 31 as will hereatter appear, and
Board's Exhibit 37, which is a list of employees on the respondent's pay roll for the week
ending January 2 This list shows a total of 62 names However it contains the names
of 10 employees who do not appear on the pay roll at the time the strike started, and ai e
presumable new employees
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was called to the significance of the term "bonus" that he began using the term
"present." He then testified that the term "bonus" and "present" meant the
same to him. Webster's dictionary defines the term "bonus" as "something
given in addition to what is usual or strictly due" and "money, or an equivalent,
given in addition to an agreed compensation." Hockman further testified that
he did not pay the employees on strike because they were not working. It is
found that the respondent on December. 31 rewarded the employees who were
working for it at that time by paying each of them an additional amount of
money based on length of service and the type of work performed the previous
year ; that the employees on strike were not similarly recognized and rewarded
because they refused to abandon the strike and return to work on December 28.
On January 6 a letter signed by Michelson, Klein, Mary Ludmar and Wo]in-
sky was mailed to the respondent. It listed 84 employees of the respondent and
stated that they were willing to return to work immediately provided they were
not required to join the TWUA or pay dues to that organization or have dues
to it deducted from their- pay. Hockman answered this letter on the 8th as
follows :
We have your letter of January 6, 1943 Please be advised that all
people you named have been offered employment and they will be accepted
up to January 12, 1943.
However, we beg to state for the record that some of the people whom
you offered returned to work have been working and are now working for
us, despite your picket line.
It would seem that your claim of representation is broader than the
facts warrant and that our fears that you are not representative of our
shop have been fully justified.
On January 7 Hockman had prepared and sent a form letter to all employees
not then working for the respondent advising them if they reported to work by
January 12, 1943, they would be employed
On January 11, 1943 the strike was abandoned and all striking employees who
had not secured other employment returned to work for the respondent. This
decision of the Union to call off the strike was based in part at least on an
understanding arrived at with the TWUA to arbitrate all jurisdictional disputes.
8. Jurisdictional dispute settled ; TWUA rescinds contract; bargaining efforts
renewed ; petition.
In the meanwhile the conflicting jurisditional claims of United Furniture
Workers of America and the Textile Workers Union of America in the New York
Metropolitan area, were, by agreement, submitted to an arbitrator.41 On Feb-
ruary 18, 1943, the arbitrator handed down his arbitration decision wherein he
found that United Furniture Workers of America had exclusivb jurisdiction in
certain types of industries including that of the respondent. On March 5, At-
torney Racolin by letter again requested the respondent to bargain with the Union
and inclosed a copy of the arbitration decision above referred to. On March 9
Korzenik acknowledged the receipt of this letter but stated that the arbitration
decision, on the face of it, did not seem to decide anything affecting the respondent
and
In any event, we do not see how the award affects our clients because
it was neither a party through the arbitration agreement nor to any of the
hearings held pursuant to it.
41 The Union withdrew its previously filed charge against the respondent in accordance
with the terms of the arbitration agreement.
FINE ART NOVELTY CORPORATION 505
You know that we are bound by contract to the Textile Workers Union
and until we are released from that contract, we do not consider ourselves
free to consider the representations of any other labor organization.
On March 19, 1943, pursuant to the arbitration award, the United Furniture
Workers of America and the Textile Workers Union of America signed an agree-
ment settling all overlapping jurisdictional claims and the TWUA expressly
recognized its "lack of jurisdiction" in the Fine Art Novelty Corporation. The
same day Michelson, Wolinsky and Sam Roth informed Hockman of the agree-
ment and suggested that the respondent negotiate with the Union. Hockman
referred the committee to Korzenik. Michelson attempted without success to
reach Korzenik by telephone and finally on March 24 wrote him demanding a
conference date. On the 26th by letter Korzenik answered Michelson stating
that the situation is "somewhat unusual and we feel that under the circumstances,
there ought to be certification by the N. L. R. B so that we know that we are
dealing with an accredited representative of our employees."
On March 25 the Union filed new charges against the respondent alleging
violation of Section 8 (1) and (5) of the Act.
On March 26 Sam Baron as general manager of the TWUA wrote Korzenik
rescinding the December 23 contract.
About this time Dorothy Pascal who was the shop chairman for the TWUA, on
learning that the TWUA had lost the arbitration decision insofar as the respond-
ent's plant was concerned, prepared in her home in her own handwriting a petition
reading as follows :
We the undersigners, workers of the Fine Art Novelty Corp. located at
503 Broadway, N Y. City, do not wish to be Members or be Represented
by the Curtain, Drapery, Workers Union, Local 45-B U. F. W. A. CIO.
Beginning about March 24, she, assisted by other members of the shop committee,
circulated this petition among the respondent's employees in and out of the shop
but not on company time and secured the signatures of 90 employees thereto.
After the signatures had been secured she brought the petition to Field Examiner
Pascal but was, informed that the matter was out of his hands. She then wrote
a letter to Attorney Korzenik dated March 27 as follows :
DEAR SIR :
We the undersigned, acting the shop committee representing the majority
of the workers of the Fine Art Novelty Co. are asking our Boss-that the
concern: (1) does not deal with Local 45-B CIO. (2) that the boss deals
(sic) with us as the shop committee.
To show proof that we are the majority in this shop we are enclosing a
petition signed by the workers.
(Signed) SHOP COMMITTEE
DOROTHY PASCAL
THERESA Rocco
ADELINE PRICE
This letter, together with the petition was then presented by her to Korzenik
about March 27.
On April 3 a conference was held in Field Examiner Pascal's office, attended
by Racolin, Michelson, Wolinsky and Safian, on behalf of the Union, and by
Hockman and Korzenik for the respondent. Racolin asked that the respondent
bargain with the Union. Korzenik produced the petition signed by the employees
which had recently been handed to him opposing representation by the Union and
stated that an election would have to be held to determine the bargaining
representative.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. Plant closes
During the course of the hearing on June 28 Hockman testified without dispute
that the plant had been shut down indefinitely on June 24 because of lack of
manufacturing material, inability to secure help or keep it because of regulations
relative to raising wages. This testimony is credited
C. Concluding findings
,The respondent became aware of the activities of the Union in its plant and
the employees' interest therein in the early fall of 1942 Through Foreman Zaum
it expressed to the employees its disapproval of the Union in November. Presi-
dent Boxenbaum and Zaum made inquiries as to who attended union meetings
and who was the "instigator" of the Union. General Manager Hockman asked
Harold Monte if he started the Union and if he was in a position to take "a
chance like that." By the above acts the respondent clearly demonstrated to
the employees that the Union was not welcome in the plant so far as it was
concerned.
It was in this atmosphere that the Union representatives made their demand
for recognition on December 14 and offered to prove their majority. The re-
spondent refused this offer although at the time it had other concrete evidence
of the union's strength among the employees by virtue of the walkout of an
overwhelming majority of the employees that same day. It took the position
that as the TWUA also claimed a majority, the matter could be settled only by
a Board certification However, after reiterating its position again on December
18 that it would insist on an election before bargaining with either 45-B or
the TWUA, within three days thereafter, it recognized and agreed to bargain
with TWUA- after an ex parte check of that union's application cards. An ex-
amination of the copies of the TWUA cards received in evidence at the hearing
show that while TWVUA had a majority on December 21, not a single card sub-
mitted was dated prior to December 15 By this act of recognition and the
later signing of a union shop contract the respondent demonstrated its antipathy
to 45-B and its favoritism to TWUA The respondent contends that it was forced
to recognize and deal with the TWUA because 45-B refused to call off the
strike and it was anxious to reopen the plant. The Union refused to call off
the strike until it secured a contract. It is noted that in this connection the
respondent took only two days to prepare and execute a contract with TWUA, so,
that the time element in that respect was not important It was obviously not
the contract, but the question of recognition that concerned the respondent. More-
over, there was no showing that the respondent could not have reopened its
plant at any time with a reduced force. When it did open its plant on De-
cember 28, after the contract with TWUA had been executed, considerably less
than fifty percent of the employees reported for work. It is found that the
respondent was not acting in good faith when it refused to recognize the Union
on December 14, 1942.' It is further found that on December 14, 1942 and at
all times thereafter the Union was the exclusive representative of the employees
of the respondent within the appropriate unit.
When the respondent paid a bonus to its employees on December 31 it
ignored the employees then on strike. By such act the respondent discriminated
42 The petitions submitted on April 3 by the respondent were negative in character and
no proof that any other organization or group represented a majority Furthermore, any
loss of majority after December 14 was the result of the unfair labor practices of the
respondent and did not represent the voluntary acts of the employees International
Association of Maclynists, etc. 311 U. S. 72
FINE ART NOVELTY CORPORATION '507
against them because of their membership in and activity on behalf of the
Union.
It is therefore found that on December 14, 1942, and at all times thereafter
the respondent refused to bargain with the Union as the exclusive representative
of its employees in the appropriate unit. By the above acts, and by the state-
ments of Zaum, Boxenbaum and Hockman, above discussed, and by the attempt
of Foreman Broinberger to have Wolinsky abandon the strike, the respondent
has interfered with, restrained and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate and susbtantial relation to trade, traffic, and commerce
among the several States tending to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V THE REMEDY
Since it has been found that the respondent engaged in certain unfair labor
practices it will be recommended that the respondent cease and desist there-
from and take certain affirmative action designed to effectuate the policies
of the Act
It has been found that the respondent, refused to bargain collectively with
the Union as the exclusive representative of its employees in an appropriate
unit. It has also been found that the respondent has ceased operating its
business because of inability to secure material and keep its employees and
there is no likelihood that the respondent will resume operations until after
the war. It will therefore not be recommended that the respondent bargain
collectively with the Union upon request's
As heretofore found the respondent as a mark of appreciation of the work
done by its employees for the year ending December 31, 1942, presented to each
of them then working in its plant with a sum of money, ranging from $5 to $25
depending upon length of service and also upon the nature of the work per-
formed by the particular employee. More than 50 percent of the employees
however, who were then on strike or who were not working because of the strike,
failed to receive any additional bonus or gift at the end of the year. Hockman
made it perfectly clear, that the only reason these employees did not receive a
bonus was that they were not working because of the strike. It is obvious that
they were penalized in this respect because of their collective activities. It will
therefore be recommended that the respondent pay to each of the employees who
struck on December 15, 1942, a bonus equivalent to the amount he would have
received on December 31 if there had been no strike.
Upon the foregoing findings of fact and upon the entire record in the case the
undersigned makes the following :
CONCLUSIONS OF LAW
1. Local 45-B, United Furniture Workers of America, C. I 0. is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
2. All employees of the respondent exclusive of supervisory employees, fore-
men, executives, officers, clerical employees and salesmen have at all times
Metal Textile Corporation of Delaware and Textile Workers Union of America , Feb 20,
1943 , 47 N. L R. B. 743.
J
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
material herein constituted and they now constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
3. Local 45-B, United Furniture Workers of America, C. I 0, on December
14, 1942, was and all times thereafter has been the exclusive representative of
all its employees in said unit for the purpose of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing on December 14, 1942, and at all times thereafter to bargain
collectively with Local 45-B, United Furniture Workers of America, C. I. 0.,
as the exclusive representative of its employees in the appropriate unit, the
respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
unfair labor practices within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
7. The respondent has not engaged in unfair labor practices by (a) threaten-
ing its employees with reprisals if they became members of or assisted 45-B,
(g) assisting TWUA by counseling, urging and encouraging its employees to
join that organization and by soliciting their signatures to application cards
for the TWUA; or (c) threatening in April, 1943, to permanently close down its
plant in preference to executing a contrast with 45-B,
RECOMMENDATIONS
Upon the basis of the foregoing findings and facts and conclusions of law,
the undersigned recommends that the respondent, Fine Arts Novelty Corporation
and its officers, agents, successors, and assigns shall :
1 Cease and desist from in any manner interfering with, restraining, and
coercing its employees in the exercise of the rights to self-organization to form,
join or assist labor organizations to bargain collectively through representatives
of their own choosing and to engage in concerted activities for the purpose of
collective bargaining for mutual aid and other protection as guaranteed in
Section 7 of the Act ;
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Make whole all its employees who went on strike December 15 and pay
to each of them a sum of money equivalent to the amount said employees would
have received as a bonus on or about December 31, 1942, if they had not been
on strike ;
(b) Post immediately in conspicuous places in its plant and maintain for a
period of at least sixty (60) consecutive days from the date of posting, notices
to its employees stating: (1) that the respondent will not engage in the conduct
from which it is recommended that it cease and desist in paragraph 1 of these
recommendations; and (2 ) that the respondent take the affirmative action set
forth in paragraph 2 (a) of these recommendations;
(c) Notify the Regional Director for the Second Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
FINE ART NOVELTY CORPORATION 509
tions, the National Labor Relations Board issue and order requiring the respond-
ent to take the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent has engaged in unfair labor practices within the
meaning of Section 8 (1) of the Act, by (a) threatening its employees with
reprisals if they became members of or assisted 45-B; (b) assisting TWUA by
counseling, urging and encouraging its employees to join that organization and by
soliciting their signatures to application cards for the TWUA; and (c) threaten-
ing in April, 1943, to permanently close down its plant in preference to executing
a contract with 45-B.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board-Series 2 as amended, effective October 28,
1942, any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case to
the board.
J. J. FITZPATBICx,
Trial Examiner.
Dated August 30, 1943.