Helena Rubinstein, Inc.

National Labor Relations Board - Board Decisions

Jul 27, 1942

42 N.L.R.B. 898 (N.L.R.B. 1942)

In the Matter of HELENA RUBINSTEIN, INC , H R . LABORATORIES, INC ,
H R CONTAINER, INC., TONE LABORATORIES, INC, GOURIELLI, INC.
and LOCAL 12165, DISTRICT 50, UNITED MINE WORKERS OF AMERICA,
C I 0
Case No C-V95 -Decided July I7, 1941
Jurisdiction : cosmetic manufacturing, distributing, ietai ing, and operation of
beauty salons industries
Unfair Labor Practices
Interference, Restraint, and Coercion questioning employees concerning union
membership and activity, making deiogatoiy'remaiks concerning the union,
its adherents, and its insignia , attempting to persuade employees to renounce
the union, advancing a wage increase and a reference to a shortage of supplies
for the purpose of interfering with the union's activities
Company-Dominated Union participation by representatives of management in'
initiation of "inside" organization-encouraging emp'oyees to disassociate
from "outside" organization and affiliate with "inside" organzation-revival
after long inactivity by supervisory employees after "outside' organization
commenced organizing employees and requested recognition-permitting spon-
sors of "inside" organization a free hand to organize, solicit members, and
collect dues in plant during working hours
Collective Bargaining majority established by authorization cards-refusal to
baigaun collectively respondents, although meeting with the Union, had no
genuine intention of recognizing or dealing with the Union, but instead sought
to delay establishment of the union's majoiity designation until the "inside"
organization cou'd be re,,ived by the supervisory employees and used as a
deuce to thwart the union-strike caused by respondents' revival of dominated
"inside" organization and refusal to recognize union
Discrimination allegations of, dismissed as to the one employee involved
Remedial Orders . employers ordered to cease and desist unfair labor practices
and to withhold recognition from dominated union, to disestablish the domi-
nated union, to offer reinstatement to strikers, to make whole the employees
ottered reinstatement
Unit Appropriate for Collective Bargaining - production, shipping, and mainte-
nance employees at the Long Island City plant, excluding office and supervisory
employees and chemists, but including so-called `temporary" employees
Mr. Drexel A Sprec7ter, for the Board
Mr H. R Korey, Mr Henry M Flateau, and M, r E Tacker, of New
York City, for the respondents
Mr Arthur J. Hayslip, of Long Island City, N Y, for the Asso-
ciation
Mr Alexander E Racolin, of New York City, for the Union
Mr. George A Koplow, of counsel to the Board
42 N L R B, No 172
898
^ ' i HELENA RUBINSTEIN , INC. r ' 899
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by Local 12165, District 50,
United Mine Woiks of America, affiliated with the Congress of Indus-
trial Organizations, herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for the
Second Region (New York City), issued its amended complaint dated
December 23,1941, against Helena Rubinstein, Inc,, H R Laboratories,
Inc , H. R Container, Inc , Tone Laboi atories, Inc , and Gourielli,
Inc ,1 Long Island 'City, New Yolk, herein collectively called the re-
spondents, alleging that the respondents had engaged in and were en-
gaging in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat 449, herein called the Act.
Copies of the amended complaint, accompanied by notices of heaiing,
were duly served 'upon the respondents, the Union, and H R Em-
ployees Association, herein called the Association
The amended complaint alleged in substance • (1) that with re-
spect to the matters, referred to therein, the respondents constituted
a completely integrated entei pi ise with its labor policy directed by
Helena Rubinstein, Inc , (2) that the respondents, on or about Oc-
tober 1, 1937, initiated, formed, and sponsored the Association and
at all times thereafter dommated it, contributed to its support, and
interfered with its administration; (3) that the respondents, by
demoting Anthony Chickory on or about, October 3, 1941, discrim-
inated in regard to his terms or conditions of employment, for the
reason that lie joined and assisted the Union or because he refused
to join or assist the Association, (4) that the respondents, on or about
September 19, 1941, and thereafter, refused to bargain collectively
with the Union, although at all such times it was the exclusive repre-
sentative of the employees in a unit appropriate for the purposes of
collective bargaining, (5) that on or about October 14, 1941, the
employees went on a strike which was caused and prolonged by the
unfair labor practices of the respondents, and (6) that the respond-
ents, from on or about August 1, 1937, urged and persuaded the
1 At the hearing, upon a motion granted without objection , Tone Laboratories , Inc , anal
Gourielli, Inc, who were not n'imed in the amended complaint , were made co-respondents
H R Koiey, representing the respondents agreed that the record make in the hearing wouldi
also be binding upon Tone Laboratoiies, Inc , and Gourielli, Inc Accoidingly, we ha%e
changed the caption of the case 'ind have construed the pleadings as including the latter two
respondents
900, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to refs ain from assisting the Union or from becoming
or remaining members thereof, and urged, persuaded, threatened, and
warned the employees to assist the Association or to become or remain
members thereof.
On January 5, 1942, the respondents filed their answer admitting
certain allegations of the amended complaint as to the integration
and interstate character of their business, but denying the commis-
sion of any unfair labor practices and alleging certain matters as an
affirmative defense The Association filed its answer, dated January
17, 1942, denying the mateiial allegations of the amended complaint
relating to it.
Pursuant to notice, a hearing was held in New York City, on Jan-
uary 8, 9, 10, 12, 13, 14, 15, 16, 19, 20, and 21, 1942, before James C.
Batten, the Trial Examiner duly designated by the Chief Trial Ex-
aminer. The Board, the respondents, and the Union were repre-
sented by counsel. The Association appeared by counsel and filed a
motion for leave to intervene, which motion was granted insofar as
the Association's interests were affected. All parties participated in
the hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues Near the commencement of the hearing counsel for the Board
filed a bill of particulars amplifying certain allegations in the
amended complaint and alleging in substance that at certain specified
times the respondents (1) made various statements encouraging em-
ployees not to join or support an "outside" union, (2) questioned
employees and applicants for employment concerning their union
-membership, (3) announced wage increases following organizational
efforts of the Union, (4) made derogatory remarks concerning the
Union and its adherents, (5) threatened employees with physical
violence and ejectment, (6) promised employment to persons upon
assurances that they were not members of an affiliated union, (7)
solicited striking employees to return to work, and (8) in other ways
interfered with the employees' right to self-organization. The re-
spondents' and Association's motions to dismiss the amended com-
plaint at the close of the Board's case were denied. These motions
were renewed at the close of the hearing; the Trial Examiner reserved
ruling thereon, and denied them in his Intermediate Report. At the
close of the hearing the Trial Examiner granted without objection
the motion of counsel for the Board to conform all pleadings to the
proof. During the course of the hearing the Trial Examiner made
rulings on other motions and on objections to the admission of evi-
dence The Board has reviewed all the rulings of the Tiial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
HELENA RUBINSTEIN, INC 901
On March 2, 1942, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, finding that
the respondents had engaged in and were engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(2), and (5) and Section 2 (6) and (7) of the Act He recommended
that the respondents cease and desist therefi om and that they take
certain affirmative action to effectuate the policies of the Act, includ-
ing the disestablishment of the Association and the reinstatement of
the strikers He further recommended that the amended complaint
be dismissed without prejudice insofar as it alleged unfair labor prac-
tices within the meaning of Section 8 (3) of the Act. Exceptions
to the Intermediate Report were filed by the respondents and the Asso=
ciation, and a brief in support of their exceptions was filed by the,
respondents.
Pursuant to notice served on all parties, a hearing was held before
the Board in Washington, D C , on June 9, 1942, for the purpose of
oral argument. The respondents and the Association were represented
by counsel and participated in the hearing The Board has considered
the exceptions and brief of the parties and, insofar as the exceptions
are inconsistent with the findings, conclusions, and order below, finds
them to be without merit. -
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Helena Rubinstein, Inc, a New York corporation with its principal
office and place of business located at New York City, is engaged in
the sale and distribution of cosmetics and ielated products and in the
operation of beauty salons throughout the United States and foreign
countries During 1941, the sales of finished products, chiefly creams,
lotions, perfumes, toilet waters, and lipsticks, amounted in value to
over $500,000 Approximately 75 percent of the products, by value,
was shipped to points outside the State of New York Helena Rubin-
stein, Inc, completely owns-and controls as subsidiaries the other four
respondents.
H R Laboratories, Inc , a New York corporation with its principal
office and place of business located at Long Island City, New York, is
engaged in the manufacture and sale of cosmetics and related products.
During 1941 it purchased raw materials, chiefly fats, oils, and powders,
valued at more than $25,000, approximately 50 percent of which, by
value, was shipped from points outside the State of New York All its
finished products, chiefly face powders, creams, lotions, toilet waters,
perfumes, and lipsticks, amounting in value to more than $100,000 dur-
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
`ing 1941, were sold and delivered to H R Container, Inc, at Long
Island City, New York.
H. R Container, Inc, a New York corporation with its principal
office and place of business at Long Island City, is engaged in the pack-
ing of cosmetics and toilet preparations. During 1941, it purchased
raw materials, chiefly bottles, boxes, cartons, and containers, valued
at more than $100,000, approximately 50 percent of which materials
was shipped from outside the State of New York. During the same
period, the sales of finished products, chiefly cosmetics and toilet
preparations, amounted to more than $300,000, all of which were sold
and delivered in the State of New York.
Tone Laboratories, Inc , a New Yoik corporation with its principal
place of business at New Yoik Cit3, and its factory at Long Island
City, is engaged in the manufacture and sale of beauty preparations.
it purchases more than 50 peicent of its materials and ships more
than 50 percent of its products outside the State of New York
Goui ielli, Inc , a New York corporation, operates a retail stoi e in
New York City and manufactures its products at Long Island City.
It receives approximately 50 peicent of its raw materials from outside
the State of New Yolk and sells all its finished products at its retail
store in New York City
The Long Island City plant, in\ olved in the present proceedings, is
composed of thiee buildings, where the respondents' employees work.
The plant is opeiated as an integi ated enterprise and the employees
are subject to a unified, common, and integrated control, established
and enforced by Helena Rubinstein, Inc In the operation of the
Long Island City plant, a combined pay roll is prepared which in-
cludes the employees of Helena Rubinstein, Inc , and all of its sub-
sidiaries For general supervisory purposes, the employees of all
the respondents are treated as a unified group
The respondents do not contest the jurisdiction of the Board
II THE ORGANIZATIONS INVOLVED
Local 12165, District 50, United Mine Workers of America, affiliated
with the Congress of Industrial Organizations, and H R Employees
Association, unaffiliated, are labor organizations admitting to mem-
bership employees of the respondents
III THE UNFAIR LABOR PRACTICES
A Supervisory employees
There are 18 employees of the respondents whose alleged supervisory
status must be determined in order to resolve certain other issues in
the case. Their names appear in the record in connection with
allegations concerning interference, restraint, and coercion on the part
- HELENA RUBINSTEIN,.,INC. 903
of the respondents, domination of the Association, and refusal to
bargain. We shall therefore determine their status before consider-
ing the allegations concerning the specific unfair labor practices
The Union claims that the following persons -on the respondents'
pay-roll list are supervisors whose relation to the management justi-
fied the geneial body of employees- in believing them to be acting
for the respondents, and who should be excluded from a unit of
ordinary employees appropriate for the purposes of collective•,bargain-
nng: Edith Corwin, Harry Corwin, Ugo Mariann, Donato Del Orro,
Anton Herdecker, Casimir Kozeski, Sophie Laskowski, Helen `Veber
Towart, Mary Lamb, Margaret Zingone, Martha Schultz, Rose Holt,
John Dolan, Joseph Ustaski, John Houlihan, Hugo Ernst, Lillian B
O'Neill, and Thomas Shea The respondents agree that Edith Cor-
win and Harry Corwin are supervisors, but contend that the other 16
are minor "working supervisors," in the same category as ordinary em-
ployees for all relevant, purposes, and that they are therefore not
supervisors 2
Dr Maras, chief chemist, supervises the manufacturing depart-
ments These departments and the persons in cliai ge are Marian,
powder manufacturing; Del Or?o, cosmetic manufacturing; Herdeek-
er, cream and lotion manufacturing; and Kozeski, cologne and per-
fume manufacturing McLaughlin conceded that these men are "in
charge of" the various departments, with three to six men "under"
each of them except Kozeski, who has one man "under" him They
do not have' the authority to hire and discharge, and they spend a
large part of their time actually participating in the work of their
departments However, in addition to participating in the work of
their departments, these individuals direct the activities of the other
employees, tell them what work to do next and are responsible for
seeing that it is done properly, instruct new employees in their duties,
and possess formulas which are trade secrets Mariann is paid $48 per
week, compared with $21 received by others in his department Del
Orio. receives $41, compared with $17 to $27 for the others in his
department, Her decker receives $17, compared with $25 to $26 Mc-
Laughlin testified that Kozeski's salary of $25 per week was the highest
in his department We find, as did the Trial Examiner, that they are
supervisors
Laskowski is in charge of the general filling and finishing depart-
ment, where 75 to 100 employees work Lamb is in charge of the 25
2 The parties are also in agreement that the following peisons , whose names do not appear
on the respondents ' pay-roll list , are supervisory employees Wilfred McLaughlin, comp-
troller, Catheune B Burke, personnel duector and purchasing agent of supplies and con-
tainers , Dr Karas, chief chemist and purchasing agent for raw materials , and Maxim E
Sirota, production manager
Edith Corwin and Hairy Corwin, referred to above, are respectively production supervisor
and traffic manager
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the compact department . Towart, also known as Weber,
is in charge of 20 to 30 , persons who do the finishing in the powder
department . Zingone is in charge of the 30 girls in the lipstick depart-
ment. These 4 persons are paid, respectively, $36, $25, $29, and $25 per
week, while ordinary employees in their respective departments re-
ceive $16 to $20 In general , they distribute the work to the employees
in their respective departments , see that it is done properly , and keep
production records, although they spend up to 50 percent or more of
their time doing non -supervisory work They are frequently referred
to as foreladies by the employees in their departments The respond-
ents contend that these 4 persons are in the same category as "table
heads," who are agreed by all parties to have supervisory duties of
such a minor nature as to make them , in effect, ordinary employees.
We do not agree These persons spend a substantially larger portion
of their time on supervisory work than do the table heads, and are paid
a substantially higher salary . They supervise several tables each,
and in some instances have table heads working in their departments.
We find, as did the Trial Examiner, that Laskowski, Lamb, Towart,
and Zingone are not in the same category as table heads , but are
supervisors
The shipping department, under the general supervision of Harry
Corwin, the traffic manager , has about 25 employees Dolan is the as-
sistant chief clerk, paid $35 per week ,'while others in the department
receive $16 to $31 He passes out the pay checks to the employees,
takes Corwin's place when the latter is on vacation , and advises Corwin
when overtime is to be worked and who should do it He handles all
export shipments and once was sent to the respondents ' Canadian plant
to organize its shipping department Schultz is head of the general
stock department , with 4 gals under her She counts the stock and
shows the others where to put it, instructs new girls, and assigns occa-
sional odd duties to be performed Her wage rate 'of $27 compares
with that of $17 to $19 for those under her Ustaska is the head packer,
at $33 per week , with 3 or 4 men under him at $19 to $29 He works
with the other men, but also confers with Corwin with respect to the
manner in which the other packers perform their work, and sees that
the others do not make mistakes The respondents contend that Cor-
win is the only supervisor in the shipping department , that the sub-
divisions operate without further supervision , and that the employees
in question are ordinary employees We find, as did the Trial Exam-
iner, that the 3 above -named persons are supervisors.
Houlihan is in charge of the 10 of 12 employees in the receiving
department He orders materials , tells truckers where to unload,
passes out the pay checks, tells employees to work overtime, makes out
production reports, and is in charge of taking inventory in the depart-
HELENA RUBINSTEIN, INC 905
ment He is paid $50 per week, contrasted with $18 to $26 paid to the
others in the department We agree' with the Trial Examiner that
he is a supervisor, and we so find.
O'Neill is in charge of the approximately 24 employees in the fac-
tory office, is responsible for bills and invoices, and handles the petty
cash for the plant She interviews applicants for clerical jobs and
recommends raises.- We find, as did the Trial Examiner, that she is a
supervisory employee.
I The evidence is insufficient to show that Shea, Holt, and Ernst
are supervisory employees.
We further find that those of the above supervisors who are found
in Section III B and C, below, to have interfered with, restrained,
and coerced the employees in various ways were, at the periods of time
in question, sufficiently closely related to the management to have
justified the general body of employees in believing them to be acting
for the respondents, and in those respects their actions were the actions
of the respondents 3
B Interference, restraint, and coercion
In the summer of 1937, the Union started to organize the respond-
ents' employees, passing out leaflets and soliciting memberships In
September 1937, the Association was formed as set forth below. Con-
currently with the formation of the Association, several supervisory
officials of the respondents were active in an effort to persuade em-
ployees to affiliate with the Association and to discontinue their rela-
tionship with the Union In September or October 1937, according to
employee. Madeline Peri one's uncontradicted testimony, Dr Kai as,
chief chemist and during 1937 production manager of the plant,
questioned her as to how many girls had joined the Union and asked
her to "persuade the girls not to loin the C. I O " Employees Per
rone and Doiis Cohen testified without contradiction, and we find
that after the Association's formation, Supervisor Lamb made a prac-
tice of collecting dues for the Association every week, particularly on
pay days, carrying on this activity in the plant during working hours
Neither the Union nor the Association carried on any activity
among the employees from early in 1938 until August 1941, when the
Union commenced an intensive organizational campaign in the plant.
Concurrently with these' organizational efforts the respondents,
through the activities of their supervisory employees, made clear to
the employees their hostility to the Union According to employee
Gertrude Harris' uncontroverted testimony, Dr. Maras stated to her,
when she and other employees started wearing union buttons in the
3International Association of Machinists v N L R B, 311 U S 72 See also N L R B
v A 9 Abell Co, 97 F (2d) 951 (C C A 4)
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, "I hear you.have been wearing decorations, too" The follow-
ing, day Dr Karas, in the presence of one of the other employees,
patted Harris on the head and said, "You should be like that girl.
She has no funny ideas in her head like you have " We find that
Karas made the foregoing statements to Harris, and that by "no funny
ideas" he referred to the fact that the girl to whom he compared
Harris was not a union member Harris also testified, and we find,
that Supervisor Herdecker stated to her "I see you axe wearing one
of those buttons, too,"' and then told her that he did not think that
the respondents would "stand fox" the Union. Herdecker, although
called by the respondents as a witness in these proceedings, did not
deny the above incident Employee Verna Sutton testified that she
secured a position with the respondents after Herdecker stated to
her that he would get hex a job on condition she did not joint "any
C I. 0 union or any union other than the company asseciation "
The Trial Examiner did not, credit Herdeckei's denial of the above
incident, nor do we, and we find that Heidecker made the statements
substantially as Sutton testified Employee Anthony Spauone stated
at the heaiing that in'September 1941 Production Manager Sirota,
when he noticed that Spauone was weaning a union button, said "Well,
youse don't have to do this A group of youse could have come in and
talked this thing over with me, and maybe we could have straightened
things out " Employee John Petry testified that on the day that
he started to wear his union button Sirota asked him why he had
joined the Union Sirota denied making the statements attributed to
him but, like the Trial Examiner, we do not credit his denial, and we
find that the statements were made. Employee John Curran, an
active union member, testified, and we find, that Harry Corwin said
to him, "It certainly is a dirty, lousy trick what you are doing . .
I can undeistand the other people doing it . . but you . . asso-
ciate with chuich people and the like, and here you go and connect
yourself with a bunch of rats " Corwin was not called as a witness
to deny these statements According to employee Mary Torpey,
whose testimony we believe, Office Manager O'Neill asked her if there
was any labor tiouble going on in the plant and said, "Mary, I am
very sorry to see you mixed up with a bunch of Reds " O'Neill was
called as a witness but was not questioned concerning the above inci-
dent. Employees Rita Spadaro and Madelyn Connolly testified that
Lamb questioned them about the Union We do not credit Lamb's
denial, particularly in view of her active participation in the forma-
tion of the Association. as set forth below
Early in September 1941, Lamb and Laskowski advised the em-
ployees that a lay-off might become necessary because of a shortage
of alcohol, and Laskowski pointed out that it would be useless to ask
for a raise under such conditions Subsequently, on September 19,
HELENA RUBINSTEIN, INC 907
Personnel Officer Burke, at a meeting of all employees, announced that
materials had been secured so that there would be work for, another
year, and that Helena Rubinstein was not going to deprive the girls
of their jobs by giving up the plant Burke then announced a gen-
eral wage increase and a bigger Christmas bonus The respondents
contend that during the summer of 1941 there had been a serious
question concerning their ability to obtain the supplies necessary to
keep the plant in operation, and that the raises announced on Sep-
tember 19 had been under consideration since May or June 1941 In
this connection it is significant that the respondents did not indicate
to the employees, despite their insistent requests foi increases in wages
during the summer of 1941, that the question of wage adjustments was
under consideration. Except for an adjustment of wages in April
1941 to the levels set by the Fair Labor Standards Act, the last gen-
eral wage inciease prior to September 1941 took place in September
1937, during the time that the Union was conducting its earlier or-,
ganizing campaign Under all the circumstances we are convinced,
as was the Tiial,Exammer, that the wage increase and the ieference
to a shortage of supplies- were advanced by the respondents for the
purpose of interfering with the Union's activities A
We find, as did the Trial Examiner, that the respondents questioned
their employees concerning their union membership and activity, made
derogatory remarks concerning the Union, its adherents, and its in-
signia, attempted to persuade employees to renounce the Union, and
advanced the wage increase and the reference to a shortage of sup-
plies for the purpose of inteifering with the Union's activities We
further find that by this course of conduct the respondents sought to
discourage any collective activity and particularly the formation of
an affiliated union, and attempted to prevent their employees from
engaging in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection The respondents thereby
interfered with, restrained, and coerced then employees in the exercise
of the rights guaranteed in Section 7 of the Act.
C Domination of and interference with the formation and adminis-
tration of the Association
In September 1937, when the Union was organizing the respondents'
employees, Dolan, Ustaski, and Nicholas and James Zoschenko had
a discussion to see "whether there was anything which could be done
about" the Union's activities. A few days later a meeting was held
*F W Woolworth v N L R B 121 F (2d) 658 (C C A 2 ), enforcing as modified (on
another point ), platter of F ih Woolworth Company, et at and United Wholesale it Ware-
house Employees of New York, Local 65, United Retail it Wholesale Employees of Am,eiica,
25 N L R B 1362 See also N L R B v Chicago Apparatus Co, 116 F (2d) 753
(CCA7)
'908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Hackett 's Hall , near the plant , to "take up then the matter with
the group as a whole " The meeting was attended by a substantial
number of employees , including Laskowski , Herdecker , Lamb, Dolan,
Towart , O'Neill, Schultz, Burke, and Ustaski, all of whom were super-
visory employees The following officers and delegates were there
elected: James Zoschenko , president ; Dolan , treasurer ; Dorothy
Eckert, secretary ; Nicholas Zoschenko , sergeant-at-arms; Ustaski,
Lamb, Mae Dunne , and Anna Gould, delegates.
At the first meeting of the Association , according to Dolan, "we
decided to write to the Labor Board and find out what we could do,
if anything to counteract the CIO activity at the time " Subsequently
a committee called on Attorney Hayslip , who drew up a constitution
' and bylaws which were later adopted , providing for dues of 25 cents
per month , and placing the control of the organization in the hands
of its officers and delegates We have observed above, that during
September and October 1937 certain supervisory employees attempted
to persuade employees to affiliate with the Association rather than the
Union, and that at least one supervisor , Lamb, actively collected dues
in the plant during working hours.
Although the Association thereafter advised the respondents that it
represented a majority of their employees and requested a bargaining
conference , no conferences were ever held At the last meeting of
the Association , held in March 1938 , there \vas some discussion of a
strike and of the Association 's efforts to bargain with the respondents
.After several heated arguments with the president of the Association,
Dolan resigned . Thereafter the Association became completely 'in-
active except for a social affair held for the purpose of disposing of
the funds in- its treasury . From March 1938 until August 1941, there
were no further activities on the part of the Union or the Association,
and the Association during this period never made any further at-
tempt to deal in any way with the respondents. "
In August 1941 the Union again started a drive to organize the
respondents ' employees. Despite the active interference of a number
of supervisory employees, as described above, the Union's campaign
,was highly successful , and on September 19, 1941, it informed the re-
spondents that it had as members a majority of their employees, and
requested a bargaining conference . On October 3, 1941, at a con-
ference in the Board's Regional office, the Union and the respondents
agreed to an election to be held on October 15 The respondents asked
the Board 's Field Examiner if he had communicated with the Asso-
ciation, which they stated had been inactive since early in 1938, but
which had made a request to bargain in 1937 and 1938. On or about
October 3 the Field Examiner called Attorney Hayslip, who stated,
that he had not heard from any of the former members of the Asso-
ciation for a year or two.
HELENA RUBINSTEIN, INC 909
According to the uncontroverted evidence, on October 8 Dolan, who
had previously held private conversations with former Association
delegates Lamb and Dunne, called Hayslip for an appointment, and
that same day Lamb, Dunne, Ustaski, and Harold Munroe met Hay-
slip at his office, told him that the Union had started organizing again
and that they had heard rumors of an impending election, and asked
him if they "could do something about it." The following day Hay-
slip, in a letter to the Board's Regional Office, stated that "the large
group of employees" which he represented would not have a place
on the October 15 ballot and requested that a hearing be held to deter-
mine the rights of the Association On October 10 the same group of
employees, together with Dolan, conferred with Hayslip at his office
during the noon hour and decided to revive the Association and to hold
a mass meeting at Hackett's Hall after work that day. Hayslip
prepared a designation card for the employees to sign. Monroe took
the card to a printer, waited while the cards were printed, and, upon
his return to the plant 2 hours later, distributed the cards through-
out the plant during working hours, to Supervisors Dolan, Ustaski,
Lamb, Towart, and other persons interested in the Association No
deduction was made from Monroe's wages for the time spent in behalf
of the Association 5 During the balance of the afternoon, Monroe and,
persons to whom he gave the cards, including Laskowski, solicited the
employees to sign the designations and to attend the mass meeting at
Hackett's Hall after work that day.
The meeting at Hackett's Hall*was attended by most of the em-
ployees, including the following supervisors • Dolan, O'Neill, Laskow-
ski, Herdecker, Ustaski, Del'Orio, Lamb, Towart, Mariana, Schultz,
and Zingone All of the latter, together with Supervisors Kozeski
and Houlihan, signed membership application cards in the Associa-
tion Dolan took charge of the meeting and asked if it would be
satisfactory for the 1937 officers and delegates to continue in office
until elections could be held At Dolan's request, Lamb and Ustaski
collected membership application cards and money to pay attorney's,
fees O'Neill made a speech wishing the members "all kinds of suc-
cess with our group, and knowing that we would win " Altogether
B Prior to the hearing Monroe had told the Board's Field Examiner that he had ordered
the printing of the cards and had had them delivered instead of leaving the plant for
them Monroe admitted at the hearing that he knew at the time he spoke to the Field!
Examiner that the story he told wis not true, and that in October or November 1941 be
told Dolan about giving the Board false infoimation The reason he did not tell the-
truth was because he "thought that that would spoil ever3 thing " At the hearing Monrom
testified that he secured permission from Corwin to leave the plant, that he punched
his time card to indicate the time he ii as out of the plant, and that a deduction had been
made in his pay check for his time absent Later he changed his testimony and admitted
that no deduction was made, but repeated that he had punched his time card Monroe's
time card introduced into evidence, shows that he did not punch his card to denote thee
time for which be was absent that day
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
160 Association membership applications were signed in the plant and
a' the meeting on the afternoon of October 10
On October 13, at a' conference in the Board's Regional Office,
counsel for the' Association presented the 160 cards to establish the
right of the Association to appear on the ballot in the foithcommg
election The Union thereupon withdrew and the proposed consent
election was canceled On October 14 the Union demanded recog-
itition and called a strike when it was refused The following day
the Union filed a charge alleging that the Association was employer-,
dominated.
On October 15 Dolan, Lamb, Ustaski, and Dunne met in the plant,
selected two "nominees" for each office, and decided to hold Associ-
ation elections by having the former delegates poll the various de-
partments This was done in the course of the next few days, each
delegate conducting the poll in his department in any manner he
wished, in some cases orally discussing with the employees their
choice for officers and delegates The following were selected Cliff
Rogers, president, Frances Berger, secietary, Dolan, tieasurer, Mon-
roe, sergeant-at-arms; Lamb, Ustaski, Dunne, Josephine Culbreth,
Frances `Nilson, and May Schrauth, delegates On October 18, the
Association submitted a proposed contract to the respondents and
requested a bargaining confeience The respondents replied on Oc-
tober 20 that they would not recognize the Association until the rep-
i esentation question was determined by an election. The record does
not show any other attempts to bargain or adjust grievances.
The Association held no membeiship meeting from Octobei 10, 1941,
until January 13, 1942, during the hearing, although the officers and
delegates met in Attorney Hayslip's office approximately twice a
month during this period At the January 13 meeting substantially
the same constitution and bylaws as had been used in 1937 weie
dopted by the Association, placing the control of the organization
in the hands of the officers and delegates, and providing for dues of
25 cents per month Fifty-eight additional membership applications
were secured between October 10, 1941, and January 19, 1942.
Reviewing the oiganizational history ii the iespondents' plant, it
appears that in 1937 it was not until the Union attempted to organize
the employees, that the Association came into being Several super-
visory employees were among the persons first promoting the Asso-
ciation and acting as its initial officers The respondents assisted
it by numerous statements to employees encouraging them to dis-
sociate themselves from the Union and to affiliate with the Association
Thereafter the respondents granted wage increases, a week's paid
vacation, and smocks for female employees, and the Association be-
came completely inactive, remaining so until after the Union again
HELENA RUBINSTEIN,, INC , 911
started to solicit memberships in 1941 After the `Union had i e-
auested recognition of the respondents in 1941 the respondents,
through their supervisory employees, revived the Association. This
-,,as done to the accompaniment of anti-union statements and ex-
pressed hostility to the Union, on the part of certain supervisory
employees In 1 day the Association secured 160 members, many
of them through th active solicitation of supervisory employees,
during working hours, and the rest at a mass meeting which nn-as
advertised in the plant by a number of supervisory employees, and
attended and presided over by them.
The Trial Examiner concluded that the fact that the impetus for
the organization arose from the efforts of supervisory employees;
that the sponsors of the Association were given a fiee hand to or-
ganize, solicit members, and collect dues in the plant during working
hours, that assistance was given the Association by statements of
management i epresentatives to the employees expressing antagonism
to the Union, and that the Association was ineffective as a representa-
tive of the employees, showed that the respondents had coerced and
interfered with the employees in the exercise of their right to bargain
collectively through iepresentatives of their own choosing We agree
with the Trial Examiner and find that the respondents dominated and
interfered with the foimation and administration of the Association
and contiibuted support to it, and that by these acts the respondents
interfei ed with, restrained, and coerced their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
D. The refusal to bargain collectively
The, appropriate unit
The complaint alleges, and the Union claims, that all production,
shipping, and maintenance employees of the respondents, except Tone
Laboratories, Inc , and Gourielh, Inc, at the Long Island City plant,
excluding office and supervisory employees and chemists, constitute an,
appropriate unit fox the purposes of collective bargaining The re-
spondents contend for a unit composed of all employees at the plant,
excluding supervisory and tempos ary employees The paities are not
in agreement as to the inclusion of the Tone and Gourielli employees,
the office and temporary employees, and the chemists The respond-
ents also object to the exclusion of ceitain employees contended by
the Union to be supervisory.
The Tone Laboratories, Inc , and Gourielli, Inc , employees, as above
set forth, aie included in the unified control and supervision at the
Long Island City plant, and in general they are engaged in the same
type of work as the employees of the other respondents These em-
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, with the exceptions set forth below, will be included in the
unit
O ice employees The office and cleiical employees, with a few
exceptions, perform their work in the main factory office The Union
has never sought their membership, although they are eligible to loin,
and Hamilton, organizer for the Union, stated that usually in a plant
of this kind a separate contract is negotiated for clerical employees
if the Union admits them. The Association, found above to' be an
employer-dominated organization, made an active effort to organize
them, largely through the efforts of Office Manager O'Neill. The
respondents contend that these employees, as contrasted with those in
the respondents' main office in New York City, are intimately con-
nected with production However, in the consent election agreement
executed on October 6 the respondents agreed, without discussion, to
the exclusion of office employees They changed their position only
after the Association asked to bargain for a, unit including such
employees. The office and clerical employees perform the ordinary
functions of a factory clerical staff, such as filing, bookkeeping, and
tabulating, rather than physical production, work McLaughlin
testified that the respondents "like to keep the office segregated as much
as possible " We find, as did the Trial Examiner, that on the re-
spondents' pay roll for September 19, 1941, there are 36 individuals
who are office and clerical employees and as such should be excluded
from the unit 6
Temporary employees. Every year, begimung during the summer?
the respondents hire a number of female employees for the "Christmas
business," laying off most of them during January and February of
the following year The respondents designate 39 employees on their
pay roll of September 19, 1941, and an additional 38 on the October
13 pay roll, in such category While McLaughlin testified that "very
few" of those laid off come back to work the following year, the
iespondents maintain a "call list" of formes employees, and in hiring
for the Christmas rush or for any special piomotion these employees
are recalled before others are added When these employees are hired
they are told that the work is "temporary," but virtually all other
employees are also told this when they start to work When McLaugh-
lin signed the consent election agreement on October 6 he made no
claim that temporaiy employees should be excluded, although he
testified that he thought he would iaise the question when the parties
planned to meet before the election to determine who was eligible to
vote under the agreement. In this connection it is significant that
s The 36 office and clerical employees do not include Lillian B O'Neill , found in Section
III A , above, to be a supervisory employee The names of the 36 excluded are found'
on the following pages of Board Exhibit 21 21, on page 10, 12 on page 1, 2 on page 7,
and 1 on page 11
HELENA RUBINSTEIN, ' INC 913
McLaughlin insisted upon, and finally secured, a later eligibility date,
admittedly in part "because of employees returning who previously
worked for" the respondents We shall include these employees in
the unit, as did the Trial Examiner 7
Supervisory employees and chemists We have found in Section III
A, above, that the following 15 employees are supervisors- Edith
Corwin, Harry Corwin, O'Neill, Laskowski, Towart, Lamb, Zingone,
Schultz, Dolan, Ustaskl, Houlihan, Mariann, Del Orio, Herdecker, and
Kozeski s We shall exclude them from the unit also. -
We find that the production, shipping, and maintenance employees
at the Long Island City plant. excluding office and supervisory em-
ployees and chemists, at all times material herein constituted, and now
constitute, a unit appropriate for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and that such a unit insures to the
employees the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuates the purposes of the
Act
2 Representation by the Union of a majority in the appropriate unit
The respondents' pay roll lists 282 employees, including employees
excluded above, on September 19, 1941 We have excluded 36 office
and clerical employees and 15 supervisors 9 With the exclusion of
these 51 persons there remain 231 employees on the September 19,
1941, pay roll in the appropriate unit.
There were introduced into evidence 126 union designation cards
dated on or before September 19, 1941, plus 1 undated card, that of
Maiie McGlone, which Hamilton's uncontradicted testimony estab-
lishes was signed before September 19 10 Two of the 127 cards, those
of Huid and Brennan, will not be considered, since it is clear that the
signers were not employed on September 19, although their cards bear
an earlier date.
The evidence gives rise to some question as to whether 4 of the
remaining 125 cards constituted valid authorizations They are the
7 See Matter of Kalamazoo Creamery Company and International Brotherhood of Team-
sters Chauffeurs, "Warehousemen and Helpers, Local No 7, A F L, 34 N L R B 101
s Mariam, Del Orio, Herdecker, and Ko7eski are in charge of departments under Dr
tiaras, chief chemist They are in possession of formulas which are trade secrets and
require a close and confidential lelationshlp with Dr Maras we find that these employees
are chemists and are outside the appropriate unit because of the nature of their work, in
addition to being excluded as supervisors
O'Neil , the office manager , is excluded from the unit along with other office employees,
in addition to being excluded as a supervisor
U Included among the 15 supervisors are O'Neill, Rho was also found to be a clerical
emplo3ee, and Herdecker, Del Orio, Kozeski, and Mariam, who were also found to be
chemists
10 In addition , 26 other undated union cards were introduced into evidence but have not'
been included in the above calculations
4728142-vol 42--58
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards of Jurcak, Gould, and Schott, who in effect changed their minds
about wanting the Union to represent them, at soiree time after signing
membership cards, and Lanai, who did not authoiize the signature
on his behalf, but who in effect ratified the action later. At the hear-
ing the respondents compared the signatures on the cards with the
endorsements on pay checks and questioned the signatures of 22 of
the 125 signed cards in addition to the 4 discussed above The authen-
ticity of 18 of these 22 signatures was definitely established by testi-
i pony at the hearing As to the remaining 4 of the 22, a comparison
satisfies us as to their authenticity In general, all 125 cards, with
,the exception of those of Jurcak, Gould, Schott, and Lanai, about
which there may be some doubt, wet e authenticated by the testimony
of the persons who signed the cards, by the testimony of witnesses
who saw them signed or who otherwise had knowledge that they were
validly executed, by a comparison of signatuies on the cards and
canceled checks, or,by the respondents' concessions Under the circum-
stances, it is unnecessary to deteimine whether the designations of
Jurcak, Gould, Schott, and Lanai should be counted, since even with-
out them the Union, on September 19, 1941, represented at least 121
of the 231 employees in the appropriate unit
We find that on and at all times after September 19, 1941, the Union
was the duly designated representative of a majoiity of the employees
in the appropriate unit, and that, pursuant to Section 9 (a) of the
Act, the Union was at all such tines' and now is the exclusive repie-
sentative of all the employees in such unit for the pm poses of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment
3 The iefusal to bargain
The Union, in a letter dated September 19, 1941, advised the respond-
ents of its majority status and requested a bargaining conference. On
September 22, Hamilton went to the plant for a conference, accom-
panied by another union representative McLaughlin refused to see
the two representatives, testify ing that "I told Hamilton I would see
him alone because I was alone from the company's standpoint "
McLaughlin told Hamilton that he would agree to a check of union
membership cards against the respondents' pay roll to deteimine
whether the Union had the majority it claimed, and stated that if the
Union showed that it had been designated by a majority of the em-
ployees, the respondents would recognize it Hamilton asked Mc-
Laughlin whether, in the event that the Union showed its majority
designation, he would sign a written statement providing for recogni-
tion of the Union McLaughlin replied "We-do not need to put 'any-
thing in writing" Hamilton stated that under such circumstances be
HELENA, RUBINSTEIN INC. 915
would not divulge the names of theiunion members At McLaughhn's
request, Hamilton left a copy of, the wi itten statement of recognition
and agreed to bring in the membership cai ds
On September 24 Hamilton again confei i ed alone with McLaughlin
in the plant office, but shortly after the conference started they were
joined by Nadel, an attorney representing the respondents, with whom
McLaughlin had discussed the situation Hamilton had the designa-
tion cards with him and stated that he was willing to proceed with
the card check but would not thus i eveal' the names of the union mem-
bers unless the respondents agreed that if the check showed that a
'mad of ity liad designated the Union the respondents would sign the
agreement for exclusive recognition 11 McLaughlin and Nadel main-
tained the position that the former had assumed at the previous con-
ference, saying, "We don'.t have to sign anything " It was then agreed
among the conferees that they "go to the Board and check the cards "
On October 3 there was a conference at the Regional Office of the
Board for the purpose of checking the designs tion cards to determine
the majority. Nadel indicated that the respondents desired an elec-
tion After the Union consented to an election, McLaughlin and Nadel
suggested that the Association might be interested in the proceedings,
even though they knew that it had ceased to function in 1938. After
the parties had tentatively agreed to a consent election, McLaughlin or
Nadel stated that October 10, the date the Union suggested for the
election, was too soon, since the Association had not been notified of
the matter It was thereupon agreed that the election would be held
on October 15
On or about October 3 the Board's Field Examiner was informed
by the Association's former attorney, Hayslip, that he had not heard
' This finding is based upon the testimony of Hamilton We do not credit McLaughlin's
testimony , nor did the Trial Examiner, that Hamilton insisted that the respondents sign
the agreement for recognition prior to a said check The respondents contend in their
brief that there is no reasonable basis in the record for crediting Hamilton , since Board's
counsel "conceded " at one point in the recoi d that "The testimony of Mr McLaughlin
is uncontiadicted " The respondents ' position is unsound The record shows that this
"concession" of Board ' s counsel was made with respect to the question whether Hamilton
showed McLaughlin the cards on September 24, a matter on which there was no dispute,
both McLaughlin and Hamilton agieeing that this was not done Hamilton's testimony,
credited above , was developed on cross-examination by the respondents ' counsel, who by
exploring this subject was apparently not willing to rely solely on McLaughlin ' s version
The Boards counsel stated for the record th it the reason he did not inquire in more detail
as to the occurrences on September 24 was because in the light of the respondents ' unfair
labor practices throughout this period and latei , it was obvious " that any pretense that
they made that they were willing to test the majority question and then bargain, was in
bad faith " As we state below, we agree that the requests to show majority were not
made in good faith , but merely to del iy recognition of the Union until the Association
could be revived and assisted by the respondents However, we also credit Hamilton on
the September 24 conference rather than McLaughlin Hamilton 's testimony is more
credible , mater aim, because if he bad insisted on written recognition before showing the
union designations it would , have made it unnecessary for Hamilton to bung the cards
with hum on September 24 or to show them to the respondents , a fact which McLlughlin
oi Nadel would almost certainly have pointed out to Hamilton if McLaughlin 's veision
were rorrect
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from any of the former members of the Association for a year or two.
On October 6 the respondents and the Union again met in the Re-
gional Office of the Board and signed the, consent election agreement.
The agreement provided, inter alia, that "The Employer agrees not
to interfere by coercion or persuasion directly or by his agents or
foremen, with its employees' free choice of collective bargaining Iepre-
sentatives." Two days later, on October 8, the Association was re-
vived largely through the activities of the same supervisory employees
who had initiated it when the Union had attempted to organize the
plant in 1937. On October 10 the Association obtained approximately
160 applications for membership in a few hours of solicitation by
supervisory and other employees in the plant and at a mass meeting
advertised, attended, and conducted by a number of supervisors. On
October 13 the Association filed its 160 designation cards in the Re-
gional Office of the Board to establish the right of the Association to
appear on the ballot, and the Union thereupon withdrew from the
consent election agreement On the morning of October 14 the union
representatives, in conference with McLaughlin, informed the latter
that the Union represented a majority of the employees and wanted
recognition Burke, a representative of the respondents, said "We
are not giving it to you " With reference to the previously scheduled
election, the union representative stated that "We do not want any
more tricks and we do not want any company union on the ballot"
Burke replied "Well, we don't want anything to do with you. If
you have got any grievances, take them to the Board," and after some .
further discussion McLaughlin said "We are not recognizing any-
body " The respondents were warned that such an attitude would
mean a strike and that the respondents would be responsible, therefor.
The Union thereupon called a strike which became effective imme-
diately and which continued until about January 12,1942
Although the respondents at the September 22 and 24 confeiences
appeared to be -advancing bona fide doubts as to the Union's status
as majority representative, we cannot consider these conferences as
isolated instances but must regard them in relation to all other factors
in the case Consideration of the sequence of events set forth in the -
preceding paragraphs, when viewed against the backgiound of anti-
union statements and actions of supervisory employees in September
and October 1941 as set forth in Section III B and C, above, and the
similar pattern of events which occurred during the Union's organiza-
tional campaign in 1937, leads us to, conclude that the respondents
followed a well-defined plan calculated to eliminate the Union as the
collective bargaining representative of the employees We are satis-
fied from the events occurring up to and including October 14, 1941,
that the respondents, on September 24, 1941, and thereafter, had no
genuine intention of recognizing or dealing with the Union, but in-
HELENA RUBINSTEIN, INC. 917
stead sought to delay the establishment of the Union's majority,desig-
nation until the Association could be revived by the supervisory
employees and used as a device to thwart the Union and to render
ineffective the consent election to which they had agreed 12 Upon the
entire record we find, as did the Trial Examiner, that the respondents
on September 24, 1941, and at all times thereafter, have refused to
bargain collectively with the Union as the exclusive representative
of the employees in an appropriate unit and have thereby interfered
with, restrained, and coerced the employees in the exercise of the rights
guaranteed in Section 7 of the Act.
E. The strike
We have detailed above the events preceding the strike which com-
menced on October 14, 1941 The evidence is conclusive that the
strike was the result of the respondents' revival of the Association,
herein found to be employer-dominated, and the refusal to recognize
the Union, herein found to be the representative of the employees
We find that the strike, was caused by the respondents' unfair labor
practices.
F. The alleged demotion of Anthony Chickory
The complaint alleges that the respondents, on or about October 3,
1941., discriminated against Anthony Chickory by demoting him to
an inferior position and by assigning him to less desirable work. The
respondents contend in substance that Chickory was transferred for
failure to perform his work propeily and deny that the position to
which he was transferred was inferior or less desirable.
Chickory, the only machine tender in the plant, was one of the
most active union protagonists, a fact which was known to the re-
spondents. Supervisory employees had complained to Comptroller
McLaughlin that Chickory was 1etaidilg production by talking about
the Union when he should have been changing the machines. In late
Septeiber 1941, at McLaughlin's request, Hamilton warned Chickory
to stop his union activities during woiking hours. On October 3,
McLaughlin again told Hamilton that Chickory was not attending to
his work. Later that day, McLaughlin received further complaints
about Chickory from the plant production manager and directed that
Chickory be assigned to assist the head of the maintenance department,
who would be responsible for the machine tending The change was
12 See N L R B v Moench Tanning Company, 121 F ( 2d) 951 (C C A 2) , National
.Z,wortice Company v N L R B, 309 U S 350 , affirming as modified ( on another point)
N L R B v National Licorice Company, 104 F (2d) 655 (C C A 2) , N L R B v
American Manufacturing Co, 106 F ( 2d) 61 (C C A 2) , Colorado Fuel and Iron Corpo-
ration v N L R B, 121 F ( 26) 165 (C C A 10)
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
made on the following day, October 4, and from then until the strike
on October 14, in which he participated, Chickory worked in the ma-
chine repair shop on another floor While his new work put an end
to the freedom he formerly enjoyed in being able to visit other parts
of the plant, no change was made in either his hours or his wages.
In their brief addressed to the Trial Examiner the respondents
stated that at the conclusion of the strike Chrckoiy was returned to
his former position as machine tendei on the third floor Under the,
circumstances, the Trial Examiner made no finding as to whether
Chickory's transfer was discriminatory, and recommended that the
allegations of the complaint relating to Chickory be dismissed without
prejudice The respondents except to the limitation that the recom-
mended dismissal be without piejudice We agree with the respond-
ents' implicit contention that the matter should be determined on its
merits. Under all the circumstances, we find that the evidence is in-
sufficient to establish that Chickory's transfer constituted discrimiia-,
tion in regard to terms or conditions of employment We shall, ac-;
cordingly, dismiss the complaint in this respect.
IV. TIIE EFFECT OF TfEE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth in Section
III above, occurring in connection with the operations of the, re-
spondents described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
V. THE REMEDY
Having found that the respondents have engaged in unfair labor
practices, we shall order them to cease and desist therefrom and to
take certain affirmative action which we find,necessary to effectuate
the policies of the Act.
We have found that the respondents dominated and interfered
with the formation and administration of the Association, and con-
tributed support to it In order to effectuate the policies of the Act
and to free the employees of the respondents from such interference
and domination and the effects thereof, which constitute a continuing,
obstacle to the exercise by the employees of the rights guaranteed
them by the Act, we shall order the respondents to refrain from
recognizing the Association as the representative of any of their
employees for the purpose of dealing with the respondents concern-
Ing grievances, labor disputes, wages, rates of pay, hours of employ-
- _ (_ HELENA RUBINSTEIN, INC 919
ment, and other conditions of employment, and to completely dis-
cstablish it as such- representative 11
We have found that the respondents, on September 24. 1941, and at,
all times thereafter, refused to bargain collectively with the Union
as the exclusive representative of the, employees in an appropriate
unit. We shall therefoie order that the respondents, upon request,
bargain collectively with the Union 14
We have also found that the strike commencing on October 14, 1941;
was caused by the respondents' unfair labor practices On January _
12, 1942, during the hearing, the strike was settled by an agreement
between the Union and the respondents, providing for the reinstate-
ment of all the strikers to their former positions The iecord does
not disclose what steps, if any, have been taken by the respondents
pursuant to the agreement For that reason, and in order to restore
the status quo as it existed prior t6 the time the respondents committed
the unfair labor practices, we shall order the respondents (1) to
offer reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and priv-' in
ileges, to those employees who went on strike on October 14, 1941, or
thereafter, and who have applied for and have not been offered rein-
statement, and (2) upon application to offer reinstatement to their
former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges, to those employees who went
on strike on said date, or thereafter, and who have not previously
applied for reinstatement; dismissing if necessary any persons hired
by the respondents on and after October 14, 1941, the date of the com-
mencement of the strike, and not in the employ of the respondents on
said date If, thereupon, despite such reduction in force, there is not
sufficient employment available for the remaining employees, includ-
ing those to be offered reinstatement, all available positions shall be
distributed among such employees without discrimination against
any employee because of his union affiliation or activities, following
such system of seniority or other procedure as has heretofore been
applied in the conduct of the respondents' business Any employees
"National Labor Relations Board v Pacific Greyhound Lines, Inc, 303 U S 272, 275,
( onsoltidated Edison Co, Inc , et at v National Labor Relations Board, 305 U S 197, 236
'4Duiing the period between September 19 and October 14, 1941, the respondents hired
a considerable number of new employees In view of the respondents ' above-mentioned
unf ur labor practices during this petiod a loss, if any, of the Union's majority resulting
from an increase in the number of emplo3ees in the appropriate unit cannot ieliece the
respondents of their duty to baigain In order to effectuate the policies of the Act, the
status giro before the respondents ' unfair labor practices were committed must be restored
and the employees secured in their right to bargain through the idpresentatwes they halve
selected Matter of'Sanco Piece Dye Works, Inc, et al, and Fede)ation of Dyers, Fan-
ishe,s, Pssnte,s if Bleachers of Ame,ica, 38 N L R B 690 , Matter of Long Late Lumber
Company and F D Robinson and International Woodwo,hers of America , Local Union
No 119, affiliated with the Congress of Industrial Organizations , 34 N L R B 700,
footnote 11 See also International Association of Machinists v N L R B, 311 U S 72,
John J Oughton, et al v N L R B, 118 F (2d) 494 (C C A 3)
v
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remaining after such distribution for whom no employment is immedi-
ately available, shall be placed upon a preferential list with priority
determined among them by such system of seniority or other procedure
as has heretofore been followed by the respondent, and shall there-
after, in accordance with such list, be offered employment in their
former or substantially equivalent positions as such employment be-
comes available and before other persons are hired for such work.
We shall order the respondents to make whole those employees who
went on strike on October 14, 1941, or thereafter, and who have applied
for and have not been- offered reinstatement, for any loss of pay they
may have suffered by reason of the respondents' refusal, if any, to
reinstate them, as provided above,-by payment to each of them of a sum
of money equal to that which he would normally have earned as
wages during the period from five (5) days after the date on which
he applied for reinstatement to the date of the respondents' offer
of reinstatement or placement upon a preferential list, less his net
earnings,15 if any, during such period. We shall also order the re-
spondents to snake whole those employees who went on strike on
October 14, 1941, or thereafter, and who have not previously applied
for reinstatement for any loss of pay they may suffer by reason of
the respondents' refusal, if any, to reinstate them, as provided above,
by payment to each of them of a sum of money equal to that which
he would normally have earned as wages, during the period from five
(5) days after the date on which he applies for reinstatement to the
date of the respondents' offer of reinstatement or placement on a
preferential list, less his net earnings, if any, during such period
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following
CONCLUSIONS one LAW
1 Local 12165, District 50, United Mine Workeis of America, af-
filiated with the Coignes of Industrial' Organizations, and H R.
Employees Association, unaffiliated, are labor organizations, within
the meaning,of Section 2 (5) of the Act.
2 By dominating and interfering with the formation and admin-
istration of H R Employees Association, and contributing support
to it, the respondents have engaged in and are engaging in unfair
labor practices, within the meaning of Section 8 (2) of the Act.
15 By "net earnings" is meant earnings less expenses , such as for transportation, room
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondents, 'which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440 Monies received for
work performed upon Federal, State, county, municipal , or other 'work -relief projects shall
be considered as earnings See Republic Steel Corporation v N L R B , 311 U S 7
HELENA RUBINSTEIN, INC 921
3 All production, shipping, and maintenance employees of the re-
spondents at the Long Island City plant, excluding office and super-
visory employees and chemists, have at-all times material herein con-
stituted and now constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act.
4 Local 12165, District 50, United Mine Workers of America,
affiliated with the Congress of 'Industrial Organizations was, on
September 19, 1941, and at all times thereafter has been, the exclusive
representative of all employees in such unit for the purpose of collec-
tive bargaining, within the meaning of Section 9 (a) of the Act
5 By refusing, on September 24, 1941, and at all times thereafter,
to bargain collectively with Local 12165, District 50, United Mine
Workers of America, affiliated with the Congress of Industrial Or-
ganizations, as the exclusive representative of, the employees in the
above unit, the respondents have engaged in and are engaging in un-
fair labor practices, within the meaning of Section 8 (5) of the Act.
6 By interfering with, restianning, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act. ..
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act
8. The respondents have not discriminated in regard to the terms or
conditions of employment of Anthony Chickory, within the meaning
of Section 8 (3)' of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ents, Helena Rubinstein, Inc, H R Laboratories, Inc, H R Con-
tainer, Inc , Tone Laboratories, Inc, and Gourielli, Inc, Long Island
City, New York, and their respective officers, agents, successors, and
assigns, shall:
1. Cease and desist from
(a) Dominating or interfering with the administration of H R
Employees Association, or with the formation or administration of
any other labor organization of their employees and from contributing
support to H. R Employees Association or to any other labor organi-
zation of their employees;
(b) Recognizing H. R Employees Association as a representative
of any of their employees for the purpose of dealing with the respond-
ents concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment;
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Refusing to bargain collectively with Local 12165, District '50,
United Mine Workers of America, affiliated with the Congress of In-
dustrial Organizations, as the exclusive representative of all produc-
tion,,shipping, and maintenance employees at their Long Island City
plant, excluding office and supervisoiy employees and chemists,
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form, join, or assist organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activ-
ities for the purposes 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 Boaid finds will
effectuate the policies of the Act.
(a) Withhold all iecognition from H R Employees Association as
the representative of any of their employees for the purpose of dealing
with the respondents concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment,
and completely disestablish H R Employees Association as such
representative;
(b) Upon request, bargain collectively with Local 12165, Distiict 50,
United Mine Workers of Ameiica, affiliated with the Congress of In-
dustrial Organizations, as the exclusive bargaining representative of
the production, shipping, and maintenance employees at their Long
Island City plant, excluding office and supervisory employees and
chemists ; '
(c). Offer to those employees who went on strike on October 14, 1941,
or thereafter, and who have applied for and have not been offered
reinstatement, immediate and full reinstatement-to their foimer or
substantially equivalent positions, without prejudice to their seniority
or other iights and privileges, in the manner set forth in the section
entitled "The remedy" above, and place those employees for whom
employment is not immediately available, if any, upon a preferential
list in the manner set forth in said section, and thereafter, in said
manner, offer them employment as it becomes available;
(d) Upon application, offer to those employees who went on strike
on October 14,1941, or thereafter, and who have not previously applied
for reinstatement, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
or other iights and privileges, in the manner set forth in the section
entitled "The remedy" above, and place those employees for whom
employment is not immediately available, if any, upon a preferential
list in the manner set forth in said section, and thereafter, in said
mannei, offer them employment as it becomes available;
(e) Make whole the employees specified in subsection (c) above, for
any loss of pay they may have suffered by reason of the respondents'
HELENA RUBENSPEIN . INC. 923
refusal, if any, to reinstate them, pursuant to subsection (c) above, by
payment to each of them of a sum of money equal to that which he
-would normally have earned as wages , during the period from five (5)
days after the date on which he applied for reinstatement to the date
of the respondents ' offer of i einstatement or placement upon a prefereii-
tial list, less his net earnings , if any, during said period; -
(f) Make whole the employees specified in subsection ( d) above, for
any loss of pay they may suffer by reason of the respondents ' refusal,
if any, to reinstate them pursuant to subsection ( d) above, by payment
to each of them of a sum of money equal to that which he would nor-
mally have earned as wages, during the period from five ( 5) days after
the date on which he applies for reinstatement to the date of the
iespondents ' offer of reinstatement or placement upon a preferential
list, less his net earnings , if any, during said period,
(g) Post immediately in conspicuous places in each of the buildings
at their Long Island City plant and maintain for a period of at least
sixty ( 60) consecutive days from the date of posting , notices to their
employees stating. ( 1) that the respondents will not engage in the
conduct from which they are ordered to cease and desist in paragraphs
1 (a), (b), (c ), and (d ) above; and (2) that the respondents will take
the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), (e),
and (f ) above;
(h) Notify the Regional Director for the Second Region in writing
within ten ( 10) days from the date of this Order, what steps the
respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondents have engaged in
unfair labor practices within the meaning of Section 8 ( 3) of the Act,
with respect to Anthony Chickory