Gotham Sales Co., Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1941

30 N.L.R.B. 100 (N.L.R.B. 1941)

In the Matter of GOTHAM SALES Co., INC. and UNITED WHOLESALE &
WAREHOUSE EMPLOYEES , LOCAL 65, AFFILIA7 ED WITTI THE CONGRESS
OF INDUSTRIAL ORGANIZATIONS
Case No. C-181.Decided March 7, 1941
Jurisdiction : general merchandise manufacturing industry.
Settlement : stipulation providing for compliance with the Act.
Remedial Orders : entered on stipulation.
Mr. Mark Lauter, for the Board.
Mr. Samuel J. Ernstoff, of New York City, for the respondent.
Mr. Edward Kuntz, Mr. J. Tabb, Mr. Walter Nelson, and Mr.
David Livingston, of New York City, for the Union.
Mr. Malcolm A. Hoffmann, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Wholesale
& Warehouse Employees, Local 65, affiliated with the Congress of
Industrial Organizations, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director for
the Second Region (New York City), issued its complaint dated
November 18, 1940, against Gotham Sales Co., Inc., New York City,
herein called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1), (2), and (3) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. A copy of the complaint, containing a notice of hearing, was
duly served upon the respondent, the Union, and "The Committee,"
a labor organization alleged in the complaint to have been formed
and sponsored by the respondent.
The complaint alleged in substance, with respect to the unfair
labor practices, (1) that the respondent discharged Max Weiss on
March 1, 1940, and Murray Klein on April 6, 1940, and has since
refused to reinstate them, for the purpose of discouraging member-
30 N. L. R. B., No. 18.
100
GOTHAM SALES CO., INC. 101
ship in the Union , thereby discriminating against said employees
in respect to their hire and tenure of employment ; (2) that the re-
spondent , on or about April 20, 1940, formed and sponsored "The
Committee ," a labor organization , and has since dominated and inter-
fered with its administration and contributed support thereto; (3)
that the respondent urged, persuaded , and warned its employees to
refrain from becoming or remaining members of the Union, and
threatened said employees with loss of employment if they aided
said Union, and if they did not become or remain members of "The
Committee"; and (4) that by these and other acts the respondent
interfered with, restrained , and coerced its employees in the exercise
of their rights to self-organization and to engage in'concerted activ-
ities with other employees for their mutual aid and protection.
On December 13, 1940, the respondent filed its answer admitting
that it is ' engaged in commerce, but denying the commission of the
alleged unfair labor practices . Prior to a hearing, the respondent,
the Union, and counsel for the Board entered into a stipulation in
settlement of the case dated February 11, 1941 . The stipulation pro-
vides as follows :
IT IS HEREBY STIPULATED AND AGREED by and between Gotham
Sales Co., Inc., by Harry Gottsegen , President , hereinafter re-
ferred to as the "Respondent"; United Wholesale and Ware-
house Employees of New York, Local 65, affiliated with the
Congress of Industrial Organizations, by Walter Nelson, Repre-
sentative , hereinafter referred to as , the "Union"; and Mark
Lauter, Attorney for'the National Labor Relations Board, Sec-
ond Region , as follows :
1. Gotham Sales Co., Inc. is and has been since on or about
January 1 , 1936 a corporation duly organized under and existing
by virtue of the laws of the State of New York.' '
2. The principal office and place of business of the Respondent
are located at 31 East 17th Street , New York City , hereinafter
referred to as the "New-York office ," and the Company maintains
branch offices at ; 30 South Wells Street, Chicago , Illinois, 512
Canal Street, New Orleans, Louisiana , and 1015 South Los Ange-
les Street , Los Angeles , California.
3. The Company is engaged at its New York office in the pur-
chase, sale and distribution of general merchandise as wholesale
dealers.
4. The principal materials and products purchased , sold and
distributed by the Company from its New York office include
drug sundries and notions.
5. The gross volume of materials and products purchased by
the Company at its New York office during the period from
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 1, 1940 to and including September 30, 1940, amounted
to approximately in excess of $150,000 .00, and the gross volume
of materials and products purchased by and shipped to the
Company at the New York office from points outside of the
State of New York during the said period amounted to approxi-
mately 50 per cent of the total volume of the Company's pur-
chases for said period.
6. The gross volume of the Company's sales of materials and
products from its New York office during the period from Janu-
ary 1, 1940 to and including September 30, 1940, amounted to
approximately in excess of $200,000 .00, and the gross volume
of the Company 's sales of materials and products from the New
York office sold by and shipped by the Company to points out-
side of the State of New York during the said period amounted
to approximately 75 percent of the total volume of the Company's
sales for the said period.
7. The Company stipulates and agrees that it is engaged in
commerce at the New York office within the meaning of Section
2 of the National Labor Relations Act.
8. On fourth amended charges filed by the Union, the Na-
tional Labor Relations Board, hereinafter referred to as the
"Board," by Elinore M. Herrick , Regional Director for the Sec-
ond Region , New York, New York, acting pursuant to the au-
thority of Section 10, sub-section (b) of the National Labor
Relations Act, 49 Stat . 449, hereinafter referred to as the "Act,"
and its Rules and Regulations , Series 2, as amended, Article IV,
Section 1 , issued its complaint on the 18th day of November
1940, against the Respondent herein.
. 9. A copy of the fourth amended charge , the complaint and
the Rules and Regulations herein above referred to in paragraph
8, together with a notice of hearing , were duly served on the
Respondent , and on December 13, 1940 the Respondent, by its
attorney , filed an answer to the herein above referred to coin-
plaint. Thereafter , and on December 2, 1940, Elinore M. Her-
rick, Regional Director for the National . Labor Relations Board,
Second Region, issued,a notice of postponement of the hearing
scheduled to be heard on December 9, 1940'to`i)ecember 16, 1940;
on December 13, 1940 issued a telegraphic notice postponing the
hearing from December 16 , 1940 to December 17, 1940; on Decem-
ber 16, 1940 issued a telegraphic notice postponing the hearing
in the above -entitled proceeding indefinitely to continue on three
days' notice by the Regional Director, for the Second Region;
-and on December 30 , 1940 issued a notice of the continuance of
the hearing on January 20, 1941.
GOTHAM SALES CO., INC. 103
10. The Respondent is and was at all times mentioned in the
above referred to complaint and at all times herein mentioned
an employer within the meaning of Section 2, sub-division (2)'
of the Act.
11. The Union is a labor organization within the meaning of,
Section 2, sub-division (5) of the Act.
12. Respondent and the Union hereby waive in the above-
entitled proceeding-the right to a hearing, to the taking of testi-
mony or other evidence before a Trial Examiner in this matter,
and to the making of findings of fact and conclusions of law by
the Board pursuant to the provisions of the Act.
13. This stipulation together with the fourth amended charge,
the complaint and the original notice of hearing herein, the
affidavit of service of the fourth amended charge, the complaint
and the original notice of hearing, dated November 18, 1940,
with corresponding return receipts, the answer of the Respondent
to said complaint, and the notices of postponement with corre-
sponding return receipts, and the National Labor Relation,
Board's Rules and Regulations, Series 2, as amended, may be
introduced into the record in the above-entitled proceeding by
filing the;,said.,Acuments with the Chief Trial Examiner of the
Board at Washington, D. C., and when so introduced shall con-
stitute the entire record in this proceeding.
'14. Upon the entire^record in the above-entitled proceeding, the
National Labor Relations Board may forthwith, or at any future
time, issue the following order :
1. Respondent, Gotham Sales Co., Inc., its officers, agents,-suc-
cessors and assigns shall refrain from:
(a) In any manner interfering with, restraining or coercing
its employees in the exercise of their rights to self-organization,
to form, join or aid labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of mutual aid or protection,
as guaranteed in Section 7 of the National Labor Relations Act;,
(b) Discourage membership in the United Wholesale and
Warehouse-Employees of'New York, Local 65, affiliated with the
Congress of Industrial Organizations, or any other labor organ-
ization of its employees, by discharging or refusing -to reinstate
its employees or any of them, or in any other manner discrimi-
nating in regard to hire or tenure of employment, or any term or
condition of employment, of its employees ;
(c) In any manner dominating or interfering with the admin-
istration of a labor organization known as "The Committee," or
its successor or successors, or with the formation or administra-
tion of any other labor organization of its employees, and from
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contributing aid or support to said organization or to any other
labor organization of its employees.
2. Respondent shall take the following 'afrmaitive action:
(a) Offer to Murray Klein full and unconditional reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority and other rights or privileges, by
placing Murray Klein on a preferential rehiring list similar to
Exhibit "A", annexed hereto and made a part thereof, and if
employment is not immediately available for Murray Klein, in
accordance with said preferential rehiring list, then ' offer - em-
ployment to Murray Klein to his former or substantially equiva-
lent position as such employment' shall become avakilable in
accordance with said preferential rehiring list.
(b) Make whole Murray Klein for the loss of pay he has.suf-
fered by reason of his discharge, by paying torsaid Murray Klein
the sum of $150. back pay;
(c) Make whole Max Weiss for the loss - of pay, be has suf-
fered by reason of his discharge by paying to said Max Weiss
the sum of $150. back pay;
(d) Withdraw and in the future withhold all, recognition
from the labor organization known as "The Committee" as the
representative of any of its employees for the purpose of dealing
with the Gotham Sales Co., Inc. as a representative of its. em-
ployees or any of them concerning grievances, labor disputes,
wages, rate of pay, hours of employment, and other conditions of
employment, and completely disestablish said organization as
said representative; I,
(e) Post immediately in conspicuous places in the New York
office of the Gotham Sales Co., Inc., located at, 31 East 17th
Street, New York, New York, and maintain fora period of at
least sixty days, a notice stating that :
(1) Gotham Sales Co., Inc. will not engage in the conduct
from which it is ordered to refrain in paragraphs 1 (a), (b) and
(c) of this Order.
(2) Gotham Sales Co., Inc. will take the affirmative action
set forth in paragraphs 2 (a), (b), (c) and (d) of this Order.
(f) Notify the Regional Director for the National Labor Rela-
tions Board, for the Second Region, within ten days from the
date of this Order of the steps the Respondent has taken to comply
therewith.
15. Upon application by the" National Labor Relations Board
forthwith or at any future time, without further -notice to the
Respondent, the United States Circuit Court of Appeals for the
Second Circuit, or any other Appropriate Circuit Court of Ap-
GOTHAM SALE'S CO,., INC. 105
,peals, as provided in Section 10, sub-division (e) of the Act, may
enter a decree embodying the enforcement of the 'aforemen-
tioned Order of the Board in substantially the same form -set
forth above in paragraphs 1 (a), (b) and (c), and 2 (a), (b),
(c), (d) and (e) of paragraph 14, hereinabove, and the Re-
spondent hereby expressly consents thereto; and expressly
waives 'its right to contest entry of such decree.
16. Respondent, by entering into this stipulation, does not con-
cede or admit and in fact denies the allegations of unfair labor
practices contained in the complaint hereinabove referred to, and
this stipulation is the result of the desire of the Respondent and
the Union to amicably adjust this matter without the necessity of
a hearing.
17. This stipulation is subject to the approval of the National
Labor Relations Board and shall become effective immediately
upon the granting of such approval by the said Board.
.18. -It is expressly stipulated and agreed further that the
terms of this stipulation constitute the entire agreement among
the parties hereto, and it is further agreed that there is no verbal
or other agreement of any kind which, in substance or fact in any
way varies, alters or adds to this stipulation.
On February 19, 1941, the Board issued and duly served on the
respondent, the Union, and "The Committee," an order approving the -
above stipulation, making it a part 'of the record, and, pursuant to
Article II, Section 36, of National Labor Relations Board Rules and
Regulations-Series 2, as amended, transferring the proceedings to
the Board for the purpose of entry of a decision and order pursuant
to the provisions of the stipulation.
Upon the basis of the above stipulation and the entire record in the
case, 'the Board makes the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Gotham Sales Co., Inc., a New York corporation, maintains its prin-
cipal office and place of business in New York City where, as wholesale
dealers, it is engaged in the purchase, sale, and distribution of general
merchandise, including drug sundries and notions. It also maintains
branch offices at Chicago, Illinois, New Orleans, Louisiana, and Los
Angeles, California. During the period from January 1, 1940, to and
including September 30,1940, the respondent purchased at its New York
office materials and products amounting in gross volume to more than
$150,000, approximately 50 per cent of which were shipped to the re-
spondent's New York office from points outside the State of New York.
106 DECISIONS OFr NATIONAL LABOR RELATIONS-BOARD
During the same period the respondent sold materials and products
amounting in gross volume to more than $200,000, approximately 75
per cent of which were shipped and sold by the respondent to points
outside the State of New York. The respondent concedes that it is
engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
We find that the above-described operations constitute a continuous
flow of trade, traffic, and commerce among the several States.
ORDER
Upon the basis of the above findings of fact and stipulation, 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 Gotham Sales Co., Inc., its officers, agents, successors, and
assigns, shall :
1. Refrain from :
(a) In any manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights to self-organization, to form,
join or aid labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of mutual aid or protection, as guaranteed in Section 7
of the National Labor Relations Act;
(b) Discouraging membership in the United Wholesale and Ware-
house Employees of New York,'Local 65, affiliated with the Congress
of Industrial Organizations, or any other labor organization of its
-employees, by discharging or refusing to reinstate its employees or
any of them, or in any other manner discriminating in regard to hire
or tenure of employment, or any term or condition of employment, of
its employees;
(c) in any manner dominating or interfering with the administra-
tion of a labor organization known as "The Committee," or its successor
or successors, or with the formation or 'administration of any other
labor organization of its employees, and from contributing aid or
support to said organization or to any other labor organization of its
employees;
2. Take the following affirmative action :
(a) Offer to Murray Klein full 'and unconditional reinstatement to
his former or substantially equivalent position, without prejudice to
his senority and other rights or privileges, by placing Murray Klein
on a preferential rehiring list similar to Exhibit "A," annexed hereto
and made a part hereof, and if employment is not immediately avail-
able for Murray Klein, in accordance with said preferential rehiring
list, then offer employment to Murray Klein to his former or substan-
GOTHAM SAL'E'S CO'., INC. 107
tially equivalent position as such employment shall become available in
accordance with said preferential rehiring list;
(b) Make whole Murray Klein for the loss of pay he has suffered
by reason of his discharge, by paying to said Murray Klein the sum
of $150 back pay; -
(c) Make whole Max Weiss for the loss of pay he has suffered by
reason of his discharge by paying to said Max Weiss the sum of $150
back pay;
(d) Withdraw and in the future withhold all recognition from the
labor organization. known as "The Committee" as the representative
of any of its employees for the purpose of dealing with the Gotham
Sales Co., Inc. as a representative of its employees or any of them
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, and other conditions of employment, and completely
disestablish said organization as said representative;,
(e) Post immediately in conspicuous places in the New York office
of the Gotham Sales Co., Inc., located at 31 East 17th Street, New York,
New York, and maintain for a period of at least sixty (60) clays, a
notice stating that: (1) Gotham Sales Co., Inc. will not engage in the
conduct from which it is ordered to refrain in paragraphs 1 (a), (b),
and (c) of this Order; (2) Gotham Sales Co., Inc. will take the
affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of
this order;
(f) Notify the Regional Director for the National Labor Relations
Board, for the Second Region, within ten (10) days from the date
of this Order of the steps the respondent has taken to comply therewith.
ExHmrr A
Shipping Department
Murray Klein David Schwartz
William Gimenez