Joseph Weinstein Electric Corp.

National Labor Relations Board - Board Decisions

Apr 21, 1965

152 N.L.R.B. 25 (N.L.R.B. 1965)

JOSEPH WEINSTEIN ELECTRIC CORP. 25
Joseph Weinstein Electric Corp. and United Mechanics' Union
Local 150 F, Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL-CIO and Local 199, Industrial Workers
of Allied Trades, Party to the Contract
Local 199, Industrial Workers of Allied Trades and United
Mechanics' Union Local 150 F, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO and Joseph
Weinstein Electric Corp ., Party to the Contract . Cases Nos.
2-CA-9829 and 2-CB-3946. April V, 1965
DECISION AND ORDER
On December 16, 1964, Trial Examiner Morton D. Friedman issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial Examiner's Decision.
He declined to pass on other unfair labor practices alleged in the com-
plaint, and made no recommendations as to them. Thereafter, the Gen-
eral Counsel and the Respondent filed exceptions to the Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions, the briefs, and the entire record in this case, and hereby
adopts the findings, conclusions,' and recommendations of the Trial
Examiner with the modifications note below.2
' As it appears that Respondent Employer ' s lockout of its employees on January 6, 1964,
was motivated in substantial part by unlawful antiunion considerations , we agree with the
Trial Examiner ' s determination that the lockout was violative of Section 8(a)(3) and (1)
of the Act
2 We agree with the General Counsel that the Order should be modified to require the
Respondent Employer ( 1) to cease and desist from encouraging membership in Local 199;
(2) to displace , if necessary , employees hired subsequent to the lockout and unfair labor
practice strike in order to afford reinstatement to the unfair labor practice strikers who
were displaced ; and (3) to make whole unfair labor practice strikers who apply for, but
are denied , reinstatement . We also correct paragraph Bl (a) of the Recommended Order
to conform to the decisions in N L .R B. v. Drivers , Chauffeurs , and Helpers Local Union
No. 639 ; International Brotherhood of Teamsters , etc. (Curtis Brothers ), 362 U.S. 274, and
International Ladies' Garment Workers Union v. N L R .B. (Bernhard-Altmann Texas
Corp.), 366 U S. 731.
152 NLRB No. 3
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner and orders that
Respondents, Joseph Weinstein Electric Corp., its officers, agents, suc-
cessors, and assigns, and Local 199, Industrial Workers of Allied
Trades, its officers, agents, and representatives, shall take the action set
forth in the Trial Examiner's Recommended Order with the following
modifications :
1. Substitute the following for subparagraph (e) of paragraph Al:
"Encouraging membership in Local 199, Industrial Workers of
Allied Trades, or discouraging membership in or activities on behalf
of United Mechanics' Union Local 150 F, Amalgamated Meat Cutters
& Butcher Workmen of North America, AFL-CIO, or any other labor
organization of its employees, by discriminatorily locking out the said
employees or by discriminating against them in any other manner in
regard to their hire and tenure of employment or any other term or
condition of employment."
2. Substitute the following for subparagraph (d) of paragraph A2:
"Upon application, offer to John Quirke, Harry Lalim, Richard
Boyko, Hans Weinert, Herbert Kreiselman, and Louis Martino, im-
mediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other rights and
privileges, dismissing if necessary, any person hired on or after Janu-
ary 6, 1964, and make such applicants whole for any loss of pay suf-
fered by reason of the Respondent's refusal, if any, to reinstate them
beginning 5 days after their application to the date of Respondent's
offer of reinstatement. Such loss of pay shall be computed in the
manner established by the Board in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing c' Heating Co., 138 NLRB 716."
3. Substitute the following for subparagraph (a) of paragraph BI:
"Acting as the exclusive bargaining representative of any of the
employees of Joseph Weinstein Electric Corp., for the purpose of deal-
ing with it concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless and
until the Union shall have been certified by the Board as the exclusive
representative of Respondent's employees."
4. The first indented paragraph of Appendix A attached to the Trial
Examiner's Decision is amended to read :
WE WILL NOT encourage membership in Local 199, Industrial
Workers of Allied Trades, or discourage membership in United
Mechanics' Union Local 150 F, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO, or any other
JOSEPH WEINSTEIN ELECTRIC CORP. 27
labor organization, by locking out our employees or in any other
manner discriminating as to the hire, tenure, or any other term or
condition of employment of any of our employees.
5. Next to the last indented paragraph of Appendix A attached to
the Trial Examiner's Decision is amended to read as follows :
WE WILL, upon application, offer to John Quirke, Harry Lalim,
Richard Boyko, Hans Weinert, Herbert Kreiselman, and Louis
Martino, immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
or other rights and privileges, dismissing, if necessary, any per-
son hired on or after January 6, 1964, and make such applicants
whole for any loss of pay suffered by reason of our refusal, if any,
to reinstate them beginning 5 days after their application to the
date of our offer of reinstatement.
6. The first indented paragraph of Appendix B attached to the
Trial Examiner's Decision is amended to read :
WE WILL NOT act as the exclusive bargaining representative of
any of the employees of Joseph Weinstein Electric Corp., for the
purpose of dealing with it concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or any other conditions
of employment unless and until we have been certified by the Na-
tional Labor Relations Board as the exclusive representative of its
employees.
7. Add the following immediately below the signature line of Ap-
pendix A attached to the Trial Examiner's Decision :
NOTE.-We Will notify the above-named employees if presently
serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed
Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on February 7, 1964 , in Cases 2-CA-9829 and 2-CB-3946,
by United Mechanics ' Union Local 150 F, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO, herein referred to as Local 150 F, the
Regional Director for Region 2 of the National Labor Relations Board,
herein called the Board , issued a consolidated complaint on May 5, 1964, on be-
half of the General Counsel of the Board against Joseph Weinstein Electric Corp.,
herein referred to as the Company , and Local 199, Industrial Workers of Allied
Trades, hereinafter referred to as Local 199, alleging violations of Section 8(a)(1),
(2), (3), and ( 5) and Section 8(b)(1)(A) and (2 ) of the National Labor Rela-
tions Act, as amended ( 29 U.S.C. Sec. 151 et seq.), herein called the Act. In
their duly filed answers to the aforesaid complaint , the Company and Local 199,
while admitting certain of the allegations thereof, denied the commission of any
unfair labor practices.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held before Trial Examiner Morton D. Fried-
man in New York, New York, on June 8 to 11, 1964. All parties were represented
and afforded a full opportunity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs. Briefs were filed by all parties with the excep-
tion of Local 150 F.
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of the demeanor of each of the witnesses who
testified before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
The General Counsel contends and the Respondent denies that it will effectuate
the policies of the Act to assert jurisdiction over the Respondent herein.
It was stipulated at the hearing that at all times material the Respondent which
maintains its principal office and place of business in the city and State of New
York has been engaged in installing electrical wiring and air-conditioning units and
providing related services.
It is further stipulated that during the year immediately preceding the issuance of
the complaint herein, a representative period, the Company in the course and conduct
of its business operations performed services within the State of New York valued
in excess of $180,000, including services for the following entities:
Flower Fifth Avenue Hospital--------------------------------- $39, 379
Billen Air Conditioning Inc----------------------------------- 3, 232
Avis Rent-A-Car System, Inc----------------------------------- 763
Arco Cooling and Ventilating Co., Inc-------------------------- 7, 903
Lucille Bag Co---------------------------------------------- 2,359
Williamsburg Greeting Corp----------------------------------- 2, 678
Helmsley Spear---------------------------------------------- 467
With regard to the Flower Fifth Avenue Hospital, which is a voluntary hospital
having a gross revenue in excess of $500,000 from providing and performing medi-
cal and hospital services, during the past year the said hospital purchased and caused
to be transported and delivered to its place of business surgical and medical supplies
valued in excess of $50,000, directly from outside the State of New York.
Each of the other entities listed above as customers of the Company, other than
Flower Fifth Avenue Hospital, annually sells and ships goods and materials valued
in excess of $50,000, to customers outside the State of New York and/or performs
services valued in excess of $50,000, in States other than the State of New York.
In addition to the foregoing, during the past year, the Company in the course
and conduct of its business operations, furnished services to the Atomic Energy Com-
mission in an amount of $2,069 and to the United States Army Pictoral Service in
an amount of $4,500.
During the same period of time, the Respondent performed services in the re-
modeling of a building in which Gramercy Construction Corporation was the prime
contractor for the General Services Administration. The work consisted of con-
struction or alteration by Gramercy, and the Company as a subcontractor, for the
purpose of altering office space for use by the Atomic Energy Commission. The
amount of the Company's subcontract from Gramercy for this work was $11,000.
The Board asserts jurisdiction over all nonretail enterprises which have an outflow
across State lines of at least $50,000 whether such outflow be regarded as direct or
indirect. Indirect outflow refers to sales of goods or services to users meeting any
of the Board's jurisdictional standards except the indirect inflow or outflow stand-
ards.' Thus, in the case at bar, the Company meets the indirect outflow standards
inasmuch as the services rendered to the firms listed above exceed the sum of $50,000
and each of the firms so listed directly ships goods or performs services in excess of
$50,000 directly outside the State of New York.
The Respondent contends, however, that the services rendered to the Flower Fifth
Avenue Hospital cannot be considered in the foregoing computation because the
Board would not assert jurisdiction over Flower Hospital inasmuch as hospitals are
in an exempt class. However, the Board also treats sales of goods or services to
enterprises or organizations which are themselves exempted from the Board's juris-
diction as indirect inflow or outflow, where such enterprises' or organizations' opera-
i Siemons Mailing Service, 122 NLRB 81, 85.
JOSEPH WEINSTEIN ELECTRIC CORP. 29
tions are of the magnitude necessary for assertion of jurisdiction over comparable
nonexempt organizations.2 Thus, although the Board might not assert jurisdiction
over the Flower Fifth Avenue Hospital, nevertheless the direct inflow of Flower
Fifth Avenue Hospital would be sufficient for the Board to assert jurisdiction over
this enterprise were it not in an exempt classification and can be computed as part
of the Company's indirect outflow.
Moreover, the Board has asserted jurisdiction over enterprises which have an
impact upon the national defense where the goods sold or the services rendered are
not directly related to the national defense but which are indirectly related to the
extent that the Board has eliminated the requirements that an enterprise's national
defense operations must be directly related to national defense. Thus it has held
that the subcontractor on a construction project for the Air Force whose services
consisted of furnishing ready-mixed concrete for the prime contractor, as having an
impact upon national defense.3 Moreover the Board has also decided that the
amount of such goods sold or services rendered need not be sufficient to satisfy the
Board's retail or nonretail standards.4 Thus in the instant case the Company has
furnished, within the critical period to the Gramercy Construction Corporation
which in turn altered a building for the General Services Administration for the
use of the Atomic Energy Commission, services of a value of approximately $11,000.5
Upon the basis of all of the foregoing I find that the Respondent is engaged in
commerce within the meaning of the Act and that it will effectuate the policies of the
Act to asseit jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted and I find that at all times material herein Local 150 F and Local 199
are labor organizations within the meaning of Section 2(5) of the Act.
III. THE ISSUES
a. Has Local 150 F been the designated and selected bargaining representative
of the Company's employees at all material times?
b. Did the Company on January 6, 1964, lock out its employees?
c. Did the Company refuse to bargain in good faith with Local 150 F?
d. Did the Company unlawfully assist Local 199 by recognizing and bargaining
with it at a time when Local 199 did not represent a majority of the Respondent's
employees?
e. Did Local 199 cause the Company to discriminate against its employees by
entering into and enforcing a contract with a 7-day union-security clause at a time
when Local 199 did not represent a majority of the Company's employees?
f. Were the employees engaged in an economic strike or an unfair labor practice
strike?
IV. THE UNFAIR LABOR PRACTICES
A. Background
For a number of years past, Local 150 F represented the Company's employees and
entered into a series of collective-bargaining agreements with it.
Local 150 F represents mechanics of various types who perform work mainly for
employers who contract with firms located in the garment area of New York City.
Respondent's employees, who are electricians, are engaged for the most part in such
work. However, the Respondent has done, and does, electrical contracting outside of
the garment area in general, in repair and construction work. Evidently Local 150 F
has jurisdiction only over electrical workers in the limited area of the garment section
and has a working agreement with Local 3 of the International Brotherhood of Elec-
trical Workers, AFL-CIO, herein referred to as Local 3, not to represent employees
who do work outside of the garment area. Local 199 is evidently an amalgamated
local which represents employees in all sections and in all trades in the city of
New York.
2 Supra.
Ready Mixed Concrete I! Materials, Inc, 122 NLRB 318.
See Orange Belt District Council of Painters ##48, AFL-CIO, etc. (Calhoun Drywall
Company), 139 NLRB 383, 389
5 Cf. Canal Marais Improvement Corporation, 129 NLRB 1332 for impact on national
defense where office building housing Federal Government agency's offices is involved
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As early as 1959, the Respondent Company, through its vice president, Martin
Weinstein, desired to expand its field of operations beyond the garment industry
but ran into difficulty because of the agreement between Local 150 F and Local 3.
During that period of time, therefore, Martin Weinstein expressed his dissatisfaction
with Local 150 F and informed several of the employees, among them John Quirke,
the Local 150 F shop steward, and Herbert Kreiselman, that he was unhappy with
Local 150 F and desired the men to join Local 199 which would permit Weinstein
more freedom of operation. As a result of this situation, several days before the
expiration of the then current contract which was to expire on January 5, 1960,
Weinstein called his employees together in the Company's shop and informed them
that he wanted them to join Local 199 and that he no longer wanted them to belong
to Local 150 F. John Quirke, as spokesman for the men, expressed his dissatisfaction
with Weinstein's plans and, as a result, Weinstein told Quirke that the latter would
not be working in the shop any longer. Weinstein told all the other employees who
had been assembled that if they did not want to go along with Local 199 they would
all be fired. One word led to another and Weinstein told Quirke to get his toolbox,
empty out Weinstein's material from it, and get out of the shop. He told much the
same thing to other employees. Thereafter, the employees left with their tools and
took them down to the union hall where they told business representative, Sol Fried-
man, what had occurred in the shop. Thereafter, the men were out of work for several
days. Finally, at a meeting before the New York State Board of Mediation, an agree-
ment was reached with Local 150 F and the men went back to work.6
At various times since then, and during the year 1963, Weinstein again spoke to a
number of his employees concerning Local 199. At such times Weinstein expressed
his dissatisfaction with Local 150 F because it confined his operations to the small
area covered by the garment industry and because he felt that Local 199 would be
better for him and for the men.7
Local 3 of the IBEW also entered the scene during this period. While there is
nothing specific in the record which sets forth a definite jurisdictional agreement be-
tween Local 3 and Local 150 F, nevertheless, there is indication that some jurisdic-
tional agreement or understanding did exist. Thus, Sol Friedman, Local 150 F busi-
ness representative, admitted that both Local 3 and Local 150 F are members of the
Central Trades and Labor Councils and that they cooperate with each other. It is
also clear that at some time during the late winter, spring, or early summer of 1963
the employees of the Company attended a meeting at Local 3 offices at which were
present the employees, Sol Friedman of Local 150 F, and Nathan Chadwick, a
representative of Local 3. Discussed was the possible transfer of the membership of
the company employees from Local 150 F to Local 3. At least some of the men
were in accord with such a possible transfer. One thing is certain, Local 150 F
through Sol Friedman expressed a desire to cooperate to the extent that if the men
desired to go over to Local 3 he, as representative of Local 150 F, would not stop
them. In fact, the manner in which the election was to be made was discussed. It
was felt that since there was a current contract between Local 150 F and the Com-
pany nothing could be done while the contract was in force and effect but that as soon
as the contract-bar period ended and notification could be given, Local 3 would
notify the Company that it now represented the majority of the Company's em-
ployees. Also discussed was a possible strike if Weinstein refused to recognize
Local 3 at such time. However, evidently nothing further developed from these
discussions. Nevertheless, the Company, when learning through Chadwick that there
was some intention to have the employees transfer from Local 150 F to Local 3, filed
a charge against Local 3 and Local 150 F with the Board's Regional Office. This
charge was eventually dropped and the employees never did transfer into Local 3.
Thus, at the critical times herein, there was Weinstein, who was dissatisfied with his
employees' union, Local 150 F, and felt that he and the employees would be better off
with a transfer to another union, Local 199. Also in the picture was a third union,
Local 3, IBEW, in which the employees were possibly interested and which would
have perhaps given the employer a larger area in which to operate. However, Wein-
stein testified, without contradiction, that when Chadwick and Friedman spoke to him
6 From the credited testimony of John Quirke and Herbert Kreiselman . Weinstein did
not directly refute this testimony but merely denied that he had locked out his men in
1960 From my observation of the witnesses and from their observed demeanor on the
stand I credit Quirke and Kreiselman and do not credit Weinstein' s denials.
7 From the credited testimony of John Quirke and Herbert Kreiselman . Weinstein in
his testimony admitted that he spoke to the men about Local 199 at least once and then,
later in his testimony , he admitted that it could have been a number of times.
JOSEPH WEINSTEIN ELECTRIC CORP. 31
about the possibility of the men transferring to Local 3, he asked Chadwick what was
in it for him and Chadwick could not assure him that he would be free to bid on jobs
that other Local 3 employers were bidding on. Accordingly, it would have been with
great reluctance that Weinstein would have signed with Local 3, if at all. It was in
this context of a three-way tug of war that the events occurred herein which are
alleged to have constituted unfair labor practices.
B. The events
On January 9, 1962, Local 150 F and the Company entered into a 2-year collective-
bargaining agreement. By a letter dated November 6, 1963, Local 150 F notified the
Company that this agreement would terminate in accordance with its provisions on
January 6, 1964, and Local 150 F, in this writing, offered to meet with and negotiate
a new contract with the Company on a mutually agreed-upon date.
On December 11, 1963, Martin Weinstein and Sol Friedman, the Local 150 F
business agent, met at Friedman's office at which time they discussed the contract.
Friedman gave to Weinstein a copy of the Union's proposed agreement, which, ac-
cording to Friedman, was a copy of a uniform contract which the rest of the in-
dustry had already signed. This proposed agreement contained blanks, some of
which were filled in showing the wages which the Union was demanding. The
agreement also included shorter hours of work, increased severance pay, and other
items which had not been included in the expiring contract. Weinstein told Fried-
man that he was not going to give Local 150 F all that it wanted and that all he
was going to give was some increase in wages to some of the men. At that time
Friedman offered to show Weinstein executed contracts that other employers in the
industry had signed. Weinstein answered that he was not interested in what others
had done, that he was only interested in Weinstein and that he knew what he had
to do. Friedman then warned Weinstein that Local 150 F did not want to have any
of the problems that they had had in 1960 at the time of the renewal of the agree-
ment that year. According to Friedman, Local 150 F wanted to obtain mechanics'
pay for mechanics instead of helpers' pay for certain mechanics; a 35-hour week
which other people in the industry had; minimum mechanics' wages of $125 a week;
and 2 percent severance pay and several other items. At any rate, when the meet-
ing broke up Weinstein took the proposed contract with him for study.
Later that month Weinstein called Friedman and told the latter that he did not
have or was not clear about all of the Union's demands As a result, on Decem-
ber 24, Friedman mailed to Weinstein a letter setting forth all of Local 150 F's
demands. This letter was received by Weinstein on December 26, 1963. On that
same day, Friedman and Weinstein met again at Friedman's office.
Friedman and Weinstein discussed the demands set forth in Friedman's letter of
December 24, 1963. These demands were a 35-hour week, two 10-minute breaks,
$130 minimum mechanics' pay, 2 percent severance pay, all men running jobs alone
to be brought up to mechanics' status, and a general increase of $10 on January 6,
1964, and $10 on January 6, 1965. Weinstein was angry with regard to the demands
of the letter of December 24, because, he maintained, and with some validity, that
the demands contained in the letter were higher than the figures that were inserted
in pencil in the proposed contract which had been submitted to him by Friedman
at the earlier date. At any rate, Weinstein again was quite adamant and stated
that he would not give anything except some raises to certain individuals and would
not consent to any other of the proposals. He insisted that the contract be the
same in other respects as the one which was about to expire. According to Fried-
man, Weinstein further stated that he was not interested in what other employers in
the industry had done but that he wanted an edge; that the others were not running
his business for him and he would do what was good for him. Friedman asked
if Weinstein had discussed the proposal with the latter's father and Weinstein an-
swered that his father was not running the business; that he was running the busi-
ness and that he would do what was good for the business.
With regard to salaries, Weinstein stated that he would consent to giving Hans
Weinert and John Quirke $5 increases for the following year and that as far as
the mechanics who were getting helpers pay was concerned, he wanted to phase
their increases out over the period of the proposed agreement. Friedman told
Weinstein that this was not acceptable to the Union; that these individuals were
mechanics carrying the responsibility of a mechanic's job; that they were inde-
pendently doing big jobs with other people working under them and that for such
work and responsibility mechanics' wages should be paid. He therefore refused to
go along with the phasing out proposal suggested by Weinstein and insisted that all
mechanics be brought up to mechanics ' pay at the rate of $130 per week. Wein-
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stein reiterated that he would not consent to this and that he desired the terms of the
expiring contract without any changes. Thus the meeting left the parties very much
in the same positions they had before the meeting 8
On January 3, 1964, all of the employees of the Company were assembled in the
basement of the Respondent 's shop. On that evening , contrary to the usual custom
of paying the men on the job at the end of the week, the employees weie told to
come back to the shop and were addressed by Martin Weinstein . When the em-
ployees had gathered in the basement a conversation was commenced by Weinstein.
Before Weinstein addressed the men, however , employee John Quirke, who was
looking for his clothes so that he could get dressed , noticed that Weinstein and
Margolin were unloading material from the trucks which had been on various jobs,
and he especially noticed that the material that he had left on the job on which he
had been working , which he had thought he would continue to work on the follow-
ing Monday morning, was also brought in. He was able to identify these materials
because his initials were on the box in which the materials were placed. Harry
Lalim observed pretty much the same course of events.
Martin Weinstein addressed the men as follows : "The contract is up. If I don't
have 199 in the shop , I don't want no union at all." 9
Weinstein proceeded to tell the men that he had read the proposed contract and
there was "everything in it" that he did not like. He specifically mentioned the
vacations . Weinstein and the employees started to discuss the contract , even dis-
cussed pay . However, Weinstein refused to consent to anything . Then, after the
discussion of the contract , Weinstein told the assembled group of employees that the
door was going to be locked Monday morning and he was not going to allow any-
body into the shop. Quirke then asked him what he meant by that because the
contract had not expired . Weinstein answered that the contract had expired and
that he would show it to the men upstairs . Quirke told him that he did not have
to show it , that he would take Weinstein 's word for it, but as far as he knew the
contract had not expired . 1e Then Quirke told Weinstein , "If you put us out tonight,
I will consider this a lockout "
Weinstein answered , "I don't care what you call it, you can call it a lockout, a
layoff, whatever you call it The door is going to be locked Monday morning and
there is going to be nobody working in this shop ." After this the men left the
shop and proceeded to the offices of Local 150 F where they related to Sol Fried-
man the events of the day . Friedman said that he would speak to Weinstein and
instructed the men to meet at their usual reporting time in front of the shop on the
following Monday morning."
8 From the credited testimony of Sol Friedman This testimony did not differ too
greatly from the testimony of Weinstein and, in fact , Weinstein stated that he was indeed
upset by the demand letter of December 24 and that he was adamant in refusing the
Union's demands and insisting upon a contract with which he could live.
O From the credited testimony of John Quirke . This testimony was corroborated al-
most in exact words by Ilens Weinert, Harry Lalim, Richard Boyko , and Herbert Iireisel-
man. Accordingly , I do not credit the denials of this statement by Martin Weinstein.
1o The Company contends that the contract expired January 5, 1964, and the General'
Counsel contends the contract expired January 6, 1964 In view of my disposition of
the issues of this case I find the exact date of expiration to be immaterial and do not,
therefore , make a finding with regard thereto.
n From the credited testimony of John Quirke, as corroborated by the testimony of
Harry Lalim , Hans Weinert, Richard Boyko , and Herbert Kreiselman . In making these
credibility resolutions , I have taken into consideration the statements on direct testi-
mony of Martin Weinstein and of employee Louis Martino to the effect that Weinstein
did not say that the shop would be closed on Monday but rather that it was Quirke who
said that because there was no contract there would be no work on the following Mon-
day, January 6. As heretofore stated, I do not credit Martin Weinstein ' s denial based
upon contradictions in his testimony and also upon my observations of him on the
witness stand . I found Martino to be rather vague in his testimony and do not credit
his rather limited recollection Accordingly , I find as stated above, that it was Weinstein
who told the employees that they should not come in to work on the following Monday.
Moreover , there was testimony that the employees had left their tools on the various jobs
on which they were working on Friday. Additionally, those who had brought their tools
to the shop had left them when they left on Friday evening. I , therefore , believe and
find that had there been a concerted walkout the employees would not have left their
tools behind in contemplation of finishing the various jobs to which they were to be
assigned on the following week. Accordingly, I find that Weinstein did inform the em-
ployees and instruct them that the shop would be closed to them on the following Monday.
JOSEPH WEINSTEIN ELECTRIC CORP. 33
On the following Monday morning, January 6, 1964, the men reported to the shop
accompanied by Sol Friedman. Present at the time were John Quirke, Harry Lalim,
Herbert Kreiselman, and Richard Boyko. A few minutes after the men arrived,
Martin Weinstein arrived accompanied by his father and Al Margolin, Weinstein's
brother-in-law. Sol Friedman, who had not been able to make contact with Wein-
stein over the weekend, approached Weinstein upon the latter's arrival and asked him
why Weinstein would not let the men go to work; that the contract had not expired.
Friedman asked Weinstein to permit the employees to work while the new contract
was being negotiated. Weinstein retorted that as far as he was concerned the contract
was over; that he no longer had a contract with Local 150 F and that he was not
letting the men go back to work. Friedman then again asked Weinstein to negotiate
and Weinstein invited Friedman into the shop. However, Friedman suggested that
they go down to the union hall, to which Weinstein consented. Friedman left with
Quirke, Kreiselman, and Boyko. Lalim was left behind to wait for Hans Wcinert.
When Weinert arrived, Martin Weinstein drove Lalim and Weinert down to the
union hall.i2
During the trip to the union hall, the two employees told Weinstein that the latter
was foolish to cause trouble, that they did not want any trouble. This led to talk
about the contract. Weinstein said that he would give raises to certain men including
the two who were in the car with them. He said he could work something out with
them, but there were certain men in the shop that he did not think deserved raises
and he would not do anything for them. Weinstein told Lalim and Weinert that they
could do what they wanted; that they did not have to do what Sol Friedman or John
Quirke said they had to do. He further told Weinert and Lalim that he knew this
trouble was coming and that he was prepared for it. He told them that he was certain
that he could hold out longer than the men and the men should remember that Sol
Friedman did not lose money and that Weinstein would not lose money and that only
the men would suffer. Weinstein further told Weinert and Lalim that he was not
satisfied with Sol Friedman and the way Friedman ran the Union. About this time
they arrived at the union hall.13
When they arrived at the union hall, they immediately began to negotiate the
contract. Friedman presented the Local 150 F demands and Weinstein presented his
demands and what he thought would be right for the men to accept and what he,
Weinstein, would refuse. There was discussion regarding the hours and wages that
were called for in the new contract. Weinstein again refused to raise wages except
to a limited extent as to certain men. He did not want to grant a 35-hour week which
was a shorter working week than that which prevailed under the expiring agreement.
He stated that he was going to do away with the coffee breaks which he felt the men
had abused. There were also six paid holidays which he wanted to take away.
Weinstein did agree to paid vacations for each of the men but he would not concede
to the demand for 2 percent severance pay. Ultimately, talk was channeled into what
individual employees were worth. With regard to Lalim and Boyko, Weinstein was
willing to give them minimum mechanics' pay in 3 years; in other words he was
willing to phase it out over a 3-year period whereas the proposed contract called for
minimum mechanics' pay for these two employees immediately Moreover, the con-
tract demanded $130 as minimum mechanics' pay whereas Weinstein's proposal was
to give only $125 at the end of 3 years.
Finally, after the negotiations had continued for some time with much bickering,
Weinstein stated that they could not get together because the men had to do what Sol
Friedman decided for them; that Friedman was a "grandmother" who prevented the
men from getting together with Weinstein. At this, Friedman offered to leave the
room to permit the men to discuss the contested matters directly with Weinstein.
Weinstein consented and Friedman left. The employees and Weinstein then proceeded
to go over the contract once again. However, nothing was accomplished by this direct
discussion with the employees. There was no agreement on any of the items except
those which had been agreed to earlier. Finally Weinstein stated that he was prepared
for a long strike and whatever happened the men were going to be the ones who would
suffer for it. He added that if the men saw things his way they could get along because
he was not going to be threatened and he was not going to be pushed; that he was
not going to be forced into anything. He also stated that he could pick up and move,
hire hew men and that, furthermore, he did not need the whole crew. He stated that
he could move to Brooklyn where he could open up another shop and guarantee
salaries to his employees. He stated that there was nothing more to say.
12 From credited testimony of Quirke and Lalim which was uncontroverted.
11 From uncontroverted testimony of Lalim and Weinert
789-730-66-vol. 152-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter Sol Friedman came back in and asked how they had progressed. The
men informed Friedman that they could not get together with Weinstein, that the
latter was "sticking to his guns" and that he was not going to go along with anything.
Then Friedman turned to Weinstein and asked him to let the men go back to work,
that they would continue talking things over and to negotiate while the men were
working. Weinstein refused, saying there was nothing really to negotiate.14
Thereupon, the meeting broke up and the employees returned with Friedman to
positions in front of the Respondent's shop where they picketed and carried placards
with the inscription, "lockout" thereon. The Union has continued such picketing up
to and including the date of the hearing.
It should be noted in connection with the foregoing, that two employees, Louis
Martino and Joseph Acevida were not at the Monday meeting. Acevida was met by a
representative of the Company and assigned to work on jobs for the Company that
day. Martino, a member of the Union, did not report on Monday as he was required
to report for an Armed Services draft physical examination. He worked for a short
time on the following day, Tuesday, having been met on the job by Al Margolin and
assigned work outside and away from the Company's shop. However, after several
hours of work he was approached by two of the striking employees and asked to leave
the job because the employees had been locked out. After explaining that he needed
the work, Martino left the job. The record does not state for certain how long or on
what jobs Acevida worked. He evidently was not working for the Company within
a short time thereafter inasmuch as he did not figure in Weinstein's considerations
when he signed a contract with Local 199 several weeks later.
When the picketing began, Martin Weinstein called the New York State Mediation
Board and asked to have a meeting with a mediator and Local 150 F. This meeting
was set for January 8. Weinstein also told the representative of the Board about the
lockout signs and was advised to send a letter to the men asking them to return to
work. Accordingly, on that day, Weinstein mailed by certified mail a letter addressed
to the Union asking the men to return to work under the same conditions then prevail-
ing. Sol Friedman testified that he did not receive this letter until some 7 weeks
later. However, the return receipt shows that without question the Union received
the letter the following day, January 7, 1964, and I so find 15 None of the men were
informed of this letter until they received their own individual letter requesting them
to return to work sometime in April, as hereinafter related.
On January 8, 1964, a meeting between the parties was held before a mediator of
the New York State Mediation Board. Present for the Company was Martin Wein-
stein and for the Union were Sol Friedman, John Quirke, Harry Lalim, Richard
Boyko, Herbert Kreiselman, and Hans Weinert. Again the contract was discussed
item by item and Weinstein remained adamant, refusing to consent to anything in the
new contract which varied in any way from the previous contract which had expired
by that time. Then he refused to consent to the minimum wages called for in the
new contract, to the 35-hour week, to a mechanics' minimum for Harry Lalim and
Richard Boyko., As before, he confined his offer to a $5 per week increase for Hans
Weinert and John Quirke, and to giving Lalim and Boyko increases to bring them up
to mechanics' level in 3 years.
After this discussion the mediator sought to speak to each party separately. First
he spoke to Friedman who told the mediator that although the Union was demanding
$130 a week minimum for mechanics, it would settle for $125 minimum since that
was what was consistent with industry practice. With regard to severance pay
which the Union demanded at 2 percent, the Union was prepared to accept
1 percent exactly as the other shops in the industry had. However, Friedman told
the mediator that Local 150 F would have to insist upon payment to Lalim and
Boyko of $125 per week, the minimum mechanics' pay, because of the fact that these
employees were doing mechanics' work. With regard to Weinert and Quirke, Local
150 F was ready to accept a $5 raise each year of the contract and was willing to
accept a 3-year contract. Thereafter, the mediator went into a separate room with
Weinstein and in a very few minutes came back and explained that Weinstein refused
to go beyond what he had already proposed. The meeting then ended, Weinstein
expressing a desire to meet again, but Friedman expressing reluctance.1e
14 From credited testimony of Lalim, Boyko , Quirke, and Friedman which did not
markedly differ from Weinstein's version of the negotiations.
15I find incredible Friedman 's testimony that he did not see the letter until 7 weeks later.
11 From the credited testimony of Friedman and Boyko as corroborated by testimony
and admissions of Martin Weinstein.
JOSEPH WEINSTEIN ELECTRIC CORP. 35
The next contact between Weinstein and any of the employees occurred later in the
same week when Hans Weinert and Harry Lalim proceeded to a public fountain which
had been decorated with Christmas lights by the Company. These employees, who
had been picketing, heard that the Company was now taking down the lights, using
employees who had been hired since the picketing began. Lalim and Wemert in-
formed the men who were doing the work that the Company's regular employees had
been locked out and there was a union dispute. They further told the working em-
ployees that the latter should not be working there, that if they wanted to work they
should call Sol Friedman and try to get jobs through Local 150 F.
The men were just about to leave with Lalim and Weinert to go down to the Local
150 F hall when Weinstein approached. Weinstein was angry. Weinert stated to
Weinstein that he could not understand why Weinstein would not go along with the
proposed contract, that Local 150 F was not asking too much. Weinstein told Weinert
that he was prepared to go for a long stretch and that no one was going to force him
into conceding. Then Weinstein turned to Lalim and Weinert and said, in effect, that
Lalim and Weinert were "all right," that if only they were involved something could
probably be worked out between them, but there were other people and he didn't
think he could work things out. Then Weinstein stated that he was fed up with the
demands, he was fed up with Local 150 and he was fed up with Sol Friedman. He
then asked Lalim and Weinert to go back to the other regular employees and talk
things over between them instead of with Sol Friedman, because whenever Friedman
was in the picture he came between Weinstein and the men. Then Weinstein again
became angry and stated that he would work and the men not work; that the employees
would "hop around from shop to shop" and in the long run they were going to lose
money. He promised that if the employees stayed with him they would make money.
Then Weinstein again tried to induce Weinert and Lalim to talk to the regular em-
ployees alone and without Friedman being present and induce the men to come to an
agreement with the Company alone. He further stated that it was going to be very
cold and after a few weeks the offer that he was making to the men would probably
sound better but that he was willing to have the men stay out a long time because
he could stand it. He told Lalim and Weinert that in 6 months or so they would see
that things were not so good around the electrical field and maybe they would give him
a call and he could work something out with them.i7
It should also be noted in connection with the picketing, that during that first week
of picketing, Quirke shouted to Weinstein from the picket line "Are you going to work
nonunion forever?"
Weinstein answered, "If I have to I will," and also, "Well, there are other unions." 18
To keep his business going, Weinstein enlisted the services of two of his supervisory
employees, Al Margolin, his brother-in-law, and William Ankudavich. Weinstein
admitted that before January 6, 1964, these men were supervisors but that when he
was forced to work without employees, Ankudavich, Margolin, and Weinstein, him-
self, worked as employees, and performed mechanics' work on the jobs which the
Company had to perform. Thereafter, the Company placed an advertisement in the
local newspapers and on or about January 8 or 9, through one of these ads, Weinstein
hired Anthony Paras. As things turned out, Paras happened to be a member of
Local 199 On January 21, 1964, Weinstein received a call from a man who said
he was from Local 199 and asked Weinstein to come down to the Local 199 office.
Weinstein did so and when he arrived there he met with this man, identified only as
"Joe," who told Weinstein that on that day there were three employees who were
members of Local 199, Tony Paras, Bill Ankudavich, and Al Margolin. At that
time these were the only three individuals whom Weinstein had working.19
After Local 199 informed Weinstein that it had signed up the employees, Weinstein
asked these three if this was so and the men answered that they had signed. When
Weinstein was at the Local 199 union hall on that day he had a discussion with Michael
Gordon the Local 199 president, and they decided that they could get together on
a contract. While he was leaving, Weinstein told Gordon he could use some help
17 From the credited testimony of Harry Lalim and Hans Welnert . I was most im-
pressed with Lalim and considered him to be a most forthright witness. I was also
impressed with Hans Weinert who struck me as being an extremely honest individual.
It should be noted in connection with this testimony that Weinstein did not refute
the same.
ze From the credited testimony of Hans Wetnert which was not denied by Weinstein.
19 It should be noted that Weinstein admitted on the stand that had there been more
employees working Ankudavich and Margolin would have gone back to supervisory work.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Gordon gave him two men whom Weinstein took on as regular employees. On
January 23, Weinstein signed a contract with Local 199. That contract was continued
in effect up to and including the date of the hearings herein.
As heretofore noted, the contract that was signed contained a 7-day union-security
clause whereby all employees covered by the agreement were required to become
members of the Union within 7 days of the beginning of their employment.
With regard to Local 199, Michael Gordon, president of 199, stated that he was
the one who negotiated and entered into the contract with the Company. While he
negotiated the contract with Weinstein and before he entered into it be asked Wein-
stein whether the latter had a contract with any other union. Weinstein's reply was in
the negative. The contract was negotiated at the office of Local 199 and was signed
there and neither Gordon nor any other representative of Local 199 ever went to the
Company's place of business. With regard to the majority question, Gordon testified
that one employee, Anthony Paras, was a member of the Union when he went to
work at Weinstein's and the other two employees, Al Margolin and William
Ankudavich, came to the union offices to sign their cards. When Gordon spoke to
Weinstein, Weinstein told him that he only had the three employees and therefore
Gordon thought at the time and was positive that Local 199 represented a majority
of the Company's employees.20
As heretofore alluded to, the Company, through Martin Weinstein, on April 22,
1964, sent letters to each of the employees to the effect that their jobs were open to
them. This letter was virtually uniform and was sent to all of the employees. The
only employee who did not receive such letter was Harry Lalim, and he did not receive
it because he was out for the day and his landlord refused to sign for it when delivery
was attempted.21
C. Concluding findings
1. As to the lockout
The General Counsel contends that the failure of the Company's employees to
work after January 3, 1964, was the result of the Company's failure and refusal
to continue in full force and effect the terms and conditions of its agreement with
Local 150 F until the expiration date thereof, and that this failure and refusal was
manifested by the Company's announced lockout of the employees on the evening
of January 3, and its refusal to permit the employees to work on January 6. He
further contends that the motivation for this company action was the failure of the
Company and Local 150 F to reach an agreement for the period following January 6,
1964, and also the often expressed sentiment of Martin Weinstein that he was un-
happy with Local 150 F and preferred that the employees join Local 199. The
Company, on the other hand, contends that the failure to work was the result of
an economic strike undertaken by the employees because they had adopted a "no
contract, no work" policy. I find merit in the General Counsel's contentions.
As found above, on the afternoon of January 3, Martin Weinstein caused the em-
ployees to assemble in the basement of the Company's premises and told them, in
effect, that he wanted them in Local 199, that he could not consent to the terms
and conditions of the proposals submitted by Local 150 F, and that the contract was
over and there was not going to be any work on the following Monday (January 6).
On the following Monday, the employees, accompanied by Sol Friedman, the
Local 150 F business agent, assembled in front of the Company's shop and after a
request by Friedman to Weinstein that the employees be permitted to work, Wein-
stein refused to let the men work. The same request was repeated and the same
refusal made later that day at the offices of Local 150 F when all parties were
assembled for the negotiation meeting.
Thus it is clear, and I find, that the Company locked out its employees on Mon-
day morning, January 6, 1964. Although the exact reason for the lockout is not
as clear as the lockout itself, it may reasonably be inferred that the lockout was
motivated by at least two related antiunion considerations. First there is the often
and emphatically expressed desire of Martin Weinstein to have the employees cease
their allegiance to Local 150 F and to affiliate with Local 199. Second, if the men
20 From the unrefuted testimony of Michael Gordon which I credit
2 'This letter of April 22 was addressed to each employee and read as follows:
There is presently an opening in the position you previously held in our firm. If
you would like to come back to work let me know.
Yours truly,
(S) Martin Weinstein.
JOSEPH WEINSTEIN ELECTRIC CORP. 37
.remained with Local 150 F, Weinstein desired a strong economic wedge with which
to force Local 150 F and his employees to accept the conditions which he imposed
as requisites for his renewing the bargaining agreement then expiring Regardless
of whether the motivation was either one or both of the foregoing, the layoff
resulting from the lockout was discriminatory in that it tended to discourage mem-
bership in Local 150 F and to destroy the latter's majority status among the Com-
pany's employees.
The Board has held that a lockout so motivated and without good economic
justification is violative of Section 8 (a) (3) and (1) of the Act and I so find 22
The question remains regarding the duration of the lockout and the status of
the locked out employees. As heretofore set forth, on January 6, after the morn-
ing meeting at the Local 150 F offices, the employees began picketing the Com-
pany's premises with signs informing that they had been locked out. Martin Wein-
stein thereupon telephoned the New York State Mediation Board apprising them
of this development, and upon the advice of one of the mediators, sent a letter
to Local 150 F, attention Sol Friedman, informing the said union that if the em-
ployees wished to work "under the terms and conditions as were previously enjoyed,"
they were welcome back. This letter was sent by certified mail and the returned
receipt, dated January 7, 1964, shows that the letter was received and signed for at
the offices of Local 150 F on that day.
Although Sol Friedman testified that he was not made aware of this offer to the
men to return to work until some 7 weeks later, I have heretofore found incredible
this testimony and find that as a matter of fact the Union was informed of the offer
to the men to return to work on the 7th of January. Because the offer was un-
equivocal and did not contain conditions other than that the men return to work
under the terms and conditions previously enjoyed, which would have placed them
in status quo, I find that on January 7 the Company effectively ended the lockout.
Accordingly I find that the lockout lasted only 2 days. While it may be true that
the men were not apprised of this letter until the day of the hearing and although
individual letters were sent to the employees offering them work on April 22, the
January 6 notification to Local 150 F as the bargaining agent for the employees was
equivalent to personal notice to the employees and I therefore find that each em-
ployee was effectively notified that his job was opened to him and that he could return
to work under the terms and conditions then prevailing on January 7. By opera-
tion of law, therefore, the discrimination against the employees ended on that day.
Because the employees continued to remain out of work, after January 7, their status
changed from discriminatees to strikers. I further find that these employees were
unfair labor practice strikers for reasons hereinafter set forth 23
2. The refusal to bargain
a. The appropriate unit and the Union's majority status
Because the Company was engaged wholly in the electrical contracting business
and because its employees were all electrician-mechanics or helpers, I find that all
employees of the Company employed at its 423 Ninth Avenue, city and State of
New York plant, excluding office clerical employees, guards, and supervisors as
defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
On January 3, 1964, the Company had in its employ seven employees, six of whom
were members of Local 150 F. I have found heretofore that these employees were
either discriminatees or unfair labor practice strikers on and after January 3, 1964.
For that reason and for reasons hereinafter set forth I further find and conclude
that the Union, Local 150 F, represented a majority of the Respondent's employees
at all critical times herein the unit hereinabove found to be appropriate.
b. The unlawful refusals to bargain
The General Counsel contends that by locking out its employees, by Weinstein's
statement with regard to his disagreement with Local 150 F and by other conduct
which was calculated to weaken the position of Local 150 F as the bargaining agent
of the Company's employees, the Company refused to bargain in violation of Sec-
22 J R Simplot Company, 145 NLRB 171.
2a It should be noted that after he sent the letter of January 6, Weinstein made no
further statements with regard to keeping the men from their jobs Therefore, it cannot
be claimed that the lockout remained in effect after that date because of any actions or
statements on the part of Weinstein.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8(a)(5) of the Act. The Company, on the other hand , argues that it never
refused to bargain and that Weinstein at all times was willing to sit down and
discuss the bargaining issues, such willingness being exemplified by Weinstein's ex-
pressed desire for additional meetings at the end of the meeting before the mediator
on January 8. Indeed , according to the Company , it was the Union which first
neglected to press its demands and ask for bargaining meetings until the then-
current contract was virtually ended and then , at the last session with the mediator,
refused additional meetings.
While I agree that Local 150 F, through Sol Friedman , was more than a little
negligent in pursuing bargaining after notifying the Company of the pending ex-
piration of the then-current contract , I nevertheless conclude that there is merit in
the General Counsel 's contention that the company conduct constitutes an unlawful
refusal to bargain . The Board 24 and the courts 25 have held that under ordinary
circumstances an employer may remain obdurate in his position on bargaining
issues and his failure to concede will be considered lawful hard bargaining rather
than a refusal to bargain . Thus, if nothing more appeared here, Weinstein 's adamant
position regarding the proposals of Local 150 F and his unwillingness to concede on
most items proposed by Local 150 F would probably have been considered merely
lawful hard bargaining . However, I cannot ignore the other circumstances which
surrounded the actual bargaining and which , I find, were such as to amply demon-
strate that Weinstein 's bargaining was not conducted in a good -faith effort to reach
an agreement with his employees representative.
In reaching the foregoing conclusion , I have considered the lockout itself and Wein-
stein's original refusals on Monday, January 6, to take the employees back while
negotiations were in progress . I have further considered the events which led up to
the lockout such as Weinstein's often expressed hostility to Local 150 F and his at-
tempts to persuade his employees to affiliate with Local 199, through none of them
wanted to become members of the said local. I have also considered Weinstein's
proposal to his employees that they enter into agreements with him and to disregard
Local 150 F . Such a proposal was Weinstein 's attempt, while the strike was in
progress , to induce employees Weinert and Lalim to persuade the employees to try to
reach an agreement separately with him and to ignore their bargaining representative.
This demonstrated pattern of attempts to subvert the status of Local 150 F and to
destroy its majority, all of which occurred while collective -bargaining negotiations
were in progress or pending , establishes that the Respondent failed to bargain in good
faith in violation of Section 8(a) (5) of the Act.26
3. The assistance to Local 199
As set forth above, after the lockout commenced and the strike continued, the
Company assigned to production work on jobs undertaken by the Company two indi-
viduals, Al Margolin and Bill Ankudavich, whom Weinstein admitted were supervisors
before the lockout and strike and who would once again supervise when there would
be working a large enough work force. I find that although they were temporarily
performing at rank-and-file level, Margolin and Ankudavich were supervisors at all
times material herein.
On or about January 9, 1964, the Respondent hired Anthony Paras who was a
member of Local 199. On January 21, Weinstein, at the request of Local 199, visited
the latter's office and agreed to recognize Local 199 on the strength of Paras' member-
ship and the information conveyed to Weinstein by Local 199 representatives that
Margolin and Ankudavich had also signed up with Local 199. On that same day,
Weinstein informed Local 199 that he could use two more men and he was assigned
two additional Local 199 members. On January 23, 1964, Weinstein signed an agree-
ment containing a 7-day union-security clause with Local 199.
Thus on the day it recognized Local 199, January 21, 1964, the Company had in
its employ three members of Local 199, two of whom I have found to be supervisors.
Also in the Company's employ on that day were six regular employees who were
engaged in a strike against the Company which strike was caused by, and was the
result of, the Respondent's unfair labor practices, herein above found. Therefore,
these striking individuals were unfair labor practice strikers who were entitled to rein-
statement to their jobs regardless of replacements hired by the Company. Accord-
ingly, they were members of the unit to be included in any assessment of majority.
24 Dierks Forests, Inc, 148 NLRB 923.
25 N.L R.B. v. American National Insurance Co, 343 U.S., 395, 404.
26 See J. R. Simplot Company, 145 NLRB 171.
JOSEPH WEINSTEIN ELECTRIC CORP. 39
Therefore, out of nine individuals, three were either members of Local 199 or had
signed cards. Of these three, two were supervisors who cannot be included in the unit.
The remaining Local 199 member cannot be included because he was a replacement
for unfair labor practice strikers. As a result, on the day of recognition there were
no employees in the unit heretofore found to be appropriate who were members of
Local 199. Accordingly, Local 199 was not the majority representative of the Com-
pany's employees.
Nor was the situation improved any on January 23, the date the contract was
entered into between Local 199 and the Company. On that date there were three
Local 199 members and six nonmembers who could be considered employees.
Clearly, Local 199 did not enjoy majority status at any time, either when recognition
was extended by the Company or when the contract was executed several days later.
It follows, therefore, that by recognizing and entering into an agreement with
Local 199 at a time when the latter did not represent a majority of the Company's
employees, the Company unlawfully assisted Local 199 and thereby violated Section
8(a)(2) and (1) of the Act. It further follows that Local 199 having received un-
lawful assistance from the Company which was violative of Section 8(a)(2) of the
Act, itself engaged in restraint and coercion under Section 8(b)(1)(A) of the Act
by entering into the agreement.
Additionally, it follows, and I further conclude and find, that by entering into a
contract with a union-security provision and enforcing the said union-security pro-
vision of the said contract and giving full force and effect to the same, the Company
further violated Section 8(a)(1), (2), and (3) of the Act because at the time such
union-security agreement was entered into, and at all times during which it was en-
forced, Local 199 was not, in fact, the representative of an uncoerced majority of the
Respondent's employees, and the contract required membership in the Union as a
condition of employment.27 Since the union-security clause and the enforcement of
the same by the Company constituted a violation of Section 8(a)(3) of the Act be-
cause of its discriminatory and coercive nature, the enforcement by Local 199 was
therefore violative of Section 8(b) (2) of the Act 28
Local 199 contends that it was unaware that there was any other union in the picture
at the time that it received recognition from the Company and entered into a contract
with it. It argues, therefore, that it acted in perfect good faith and that it cannot be
guilty of any violation of the Act in so doing. I do not find merit in this contention.
The Board and the courts have held that nothing in the Act prescribes scienter as
an element of unlawful assistance such as involved in the instant case. The activity
made unlawful by Section 8(a) (2) and Section 8(b) (1) (A) is employer support of a
union which does not enjoy majority status. Here that support was an accomplished
fact. Even if the union in good faith mistakenly sought recognition from the
Company and entered into a contract with it, the employees rights have been invaded
and, therefore, it follows that this prohibited conduct cannot be excused by a show-
ing of good faith.29
Finally, both the Company and Local 199 contend, as heretofore alluded to, that
Local 150 F abandoned the employees and abandoned the shop and that, therefore,
the recognition by the Company of Local 199 and the entry into and enforcement of
the contract could not have been violative of the Act inasmuch as Local 199 was the
only union in the picture at the time, and, furthermore, there could not have been a
question concerning representation. I find that Local 150 F did not in any manner
abandon the employees who were members of it and who were employed by the
Company. This is exemplified not only by its request to bargain but by the picketing
which was continued up to and including the date of the hearing. Certainly, such
picketing and such demand for bargaining and the charge in this case which was filed
in February 1964, all indicate that there was a continued interest in the shop by
Local 150 F.
In so concluding, I do not overlook the apparent agreement between Local 150 F
and Local 3, which, I find, was jurisdictional in nature. While the record leaves no
doubt that to some extent, at least, the representation offered by Local 150 F to its
employee members left something to be desired, I cannot conclude that Local 150 F
21 See Aaron Trosch, Ivan E Trosch, and Melvin E. Trosch d/b/a Maryland News Com-
pany, 138 NLRB 215, enfd. 321 F. 2d 692 (C.A. 4) ; Duralite Co., Inc., 132 NLRB
425, 428
88 Fiore Brothers Oil Co., Inc., 137 NLRB 191; Downtown Bakery, Corp., 139
NLRB 1352.
29 See Bernhard-Altmann Texas Corp Y. N.L.R.B., 366 U.S. 731, affg 122 NLRB 1289;
Air Master Corporation, 142 NLRB 181.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abandoned the employees merely because Local 150 F had agreed with Local 3 that
the employees of the Company's shop could, if they elected, become members of
Local 3, and that if a majority so desired Local 150 F would step out of the picture.
In point of fact this was never accomplished and Local 150 F remained the bargaining
representative of the Company's employees.30
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondents set forth in section IV, above, occurring in con-
nection with the operations 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.
VI. THE REMEDY
It having been found that the Respondents have engaged in certain unfair labor
practices, it will be recommended that the Board issue an Order requiring that they
cease and desist therefrom, and take certain affirmative action, including the post-
ing of appropriate notices designed to effectuate the policies of the Act, as amended.
Having found that Joseph Weinstein Electric Corp., the Company herein, violated
Section 8(a)(1), (2), and (3) by recognizing and entering into a union-security con-
tract with Local 199 at a time when the said Local 199 was not the majority
representative of the Company's employees and by enforcing and maintaining the
union-security provisions, I shall recommend that the Company cease and desist
from enforcing and maintaining such contract and withdraw and withhold all rec-
ognization from Local 199 or any successor as collective-bargaining representative
of its employees unless and until such labor organization shall have been certified
by the Board.
Having found that Local 199 violated Section 8(b)(1) (A) and (2) by demand-
ing and accepting recognition and entering into a union-security contract with the
Company at a time when Local 199 was not the majority representative of the Com-
pany's employees and by enforcing and maintaining the union-security provisions,
I shall recommend that Local 199 cease and desist from enforcing and maintaining
such contract and cease and desist from demanding or accepting recognition from
the Company as the collective-bargaining representative of the Company's employees
unless and until it shall have been certified by the Board.
It having been found that the Company has unlawfully refused to bargain with
Local 150 F, I shall recommend that the Company shall, upon request, bargain
collectively with Local 150 F as exclusive bargaining representative of its employees
and, if an understanding is reached, embody the same in a signed agreement
It having been found that the Company has discriminated against its employees
in violation of Section 8 (a) (3) and (1) by locking them out, it is recommended that
the Respondents make whole each of the said employees for any loss he may have
suffered as a result of the discrimination against him. However, because the Re-
spondent effectively ended the lockout on January 7, 1964, such backpay shall be
limited to January 6 and 7, 1964. It will also be recommended that upon applica-
tion the Company offer to each of the aforementioned employees found above to be
unfair labor practice strikers, immediate and full and unconditional reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges.
It will be further recommended, in view of the nature of the unfair labor prac-
tices found to have been engaged in by the Company, that it cease and desist from
infringing in any manner upon the rights guaranteed employees by Section 7 of
the Act.
Upon the foregoing findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Joseph Weinstein Electric Corp ., is an employer within the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
801 find perfectly understandable the frustration of Martin Weinstein in being unable
to obtain larger and more profitable contracts for his firm because of the jurisdictional
agreement between Local 150 F and Local 3 However, there is nothing violative of
the Act with regard to such agreements and though they work a definite hardship on
employers such as Weinstein, it is for the Congress and not for the Board to remedy
the same. Moreover, this is not an issue in this proceeding.
JOSEPH WEINSTEIN ELECTRIC CORP. 41
2. United Mechanics' Union, Local 150 F, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Local 199, Industrial Workers of Allied Trades, is a labor organization within
the meaning of Section 2(5) of the Act.
4. By locking out its employees on January 6 and 7, 1964, the Respondent has
discriminated against such employees in violation of Section 8(a)(3) and (1) of
the Act.
5. By recognizing, and entering into and enforcing a contract containing a union-
security provision with, Local 199, Industrial Workers of Allied Trades, at a time
when the said union was not the majority representative of its employees, Joseph
Weinstein Electric Corp., violated Section 8(a)(1), (2), and (3) of the Act.
6. By demanding and accepting recognition from and entering into a contract with
Joseph Weinstein Electric Corp., at a time when it was not the majority representa-
tive of the said Company's employees and by enforcing and maintaining the con-
tract which contained a union-security clause, Local 199, Industrial Workers of
Allied Trades engaged in unfair labor practices within the meaning of Sec-
tion8 (b)(1)(A) and (2) of the Act.
7. All employees employed by Joseph Weinstein Electric Corp., at its shop at
423 Ninth Avenue in the city and State of New York, exclusive of office clerical
employees, guards, and supervisors as defined in Section 2(11) of the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
8. At all times since prior to November 6, 1963, United Mechanics' Union
Local 150 F, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, has been the exclusive representative of Joseph Weinstein Electric Corp.'s
employees in the aforesaid unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
9. By refusing on and after November 6, 1963, to bargain with the said Local
150 F as the exclusive bargaining representative of its employees in the aforesaid
unit, Joseph Weinstein Electric Corp., has engaged in and is engaging in unfair
labor practices proscribed by Section 8(a)(5) and (1) of the Act.
10. The strike engaged in by the employees of Joseph Weinstein Electric Corp.,
on and after January 7, 1964, was, from its inception, an unfair labor practice strike.
11. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, and pursuant to Section 10(c) of the National Labor
Relations Act as amended it is recommended that:
A. Joseph Weinstein Electric Corp., its officers, agents, successors, and assigns
shall:
1. Cease and desist from:
(a) Recognizing or contracting with Local 199, Industrial Workers of Allied
Trades, or any successor thereto, as the representative of any of its employees for
the purpose of dealing with said labor organization concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other terms or conditions
of employment, unless and until said labor organizations shall have been certified
by the Board as the exclusive representative of its employees.
(b) Enforcing or maintaining its collective-bargaining contract with the above
labor organization entered into on or about January 23, 1964, or any modifications,
extensions , supplements, or renewals thereof, unless and until said labor organiza-
tions shall have been certified by the Board as the exclusive representative of such
employees.
(c) Refusing to bargain collectively with United Mechanics' Union Local 150 F,
Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO,
as the exclusive representative of its employees in the appropriate unit described as
follows:
All employees of Joseph Weinstein Electric Corp., employed at its 423 Ninth
Avenue, City and State of New York shop, excluding all office clerical em-
ployees, guards, and supervisors as defined in Section 2(11) of the Act.
(d) Interfering with the efforts of the aforesaid Local 150 F to negotiate for or
represent the employees in the said appropriate unit as the exclusive bargaining
agent, by locking out the employees who are members of the said union.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Discouraging membership in or activities on behalf of United Mechanics'
Union Local 150 F, Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, or any other labor organization of its employees, by dis-
criminatorily locking out the said employees or by discriminating against them in
any other manner in regard to their hire and tenure of employment or any term or
condition of employment.
(f) In any other manner, interfering with, restraining, or coercing employees in
the exercise of their rights to self-organization, to form, join, or assist the above-
named United Mechanics' Union Local 150 F, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO, or any other organization, to bargain
collectively through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or mutual aid or protection, or
to refrain from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in labor organization as a con-
dition of employment, as authorized in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Withdraw recognition from Local 199, Industrial Workers of Allied Trades,
as the exclusive bargaining representative of its employees unless and until said labor
organization shall have been certified by the Board as the exclusive representative of
such employees.
(b) Upon request bargain collectively with United Mechanics' Union Local 150 F,
Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, as
the exclusive representative of the employees in the unit set forth above, with respect
to rates of pay, wages, hours of employment, and other conditions of employment, and
if an understanding is reached, embody the same in a signed agreement.
(c) Make whole John Quirke, Harry Lalim, Richard Boyko, Herbert Kreiselman,
Hans Weinert, and Louis Martino for any loss of pay each may have suffered by pay-
ment to each of them a sum of money equal to that which he would normally have
earned on January 6 and 7, inclusive by reason of the lockout during said period,
less his net earnings during said period, with interest thereon at the rate of 6 percent
per annum.
(d) Upon application, offer to John Quirke, Harry Lalim, Richard Boyko, Herbert
Kreiselman, Hans Weinert, and Louis Martino immediate and full reinstatement to
their former or substantially equivaent positions, without prejudice to seniority or
other rights and privileges.
(e) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
backpay due.
(f) Notify each of the above-named employees, if presently serving in the Armed
Forces of the United States, of his right to full reinstatement upon application, in
accordance with the Selective Service Act, and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces
(g) Post at its plant in New York, New York, copies of the attached notice marked
"Appendix A." 31 Copies of said notice to be furnished by the Regional Director for
Region 2, shall, after being duly signed by an authorized representative of the
said Company, be posted by the Company immediately upon receipt thereof and be
maintained by it for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by said Company to insure that said notices are not altered, de-
faced, or covered by any other material.
(h) Notify the said Regional Director in writing within 20 days from the date of
this Decision and Recommended Order, what steps the Company has taken to comply
therewith.32
311n the event that this Recommended Order shall be adopted by the Board the words
"a Decision and Order" shall be substituted for the words "the Recommended Order of
a Trial Examiner" in the notice In the further event that the Board's Order is en-
forced by a decree of a United States Court of Appeals, the words "a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"a Decision and Order."
In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
JOSEPH WEINSTEIN ELECTRIC CORP. 43
B. Local 199, Industrial Workers of Allied Trades, its officers, agents and rep-
resentatives shall:
1. Cease and desist from:
(a) Demanding or accepting recognition from or contracting with Joseph Weinstein
Electric Corp., as the representative of its employees for the purpose of dealing with it
concerning grievances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment unless and until it shall have been certified by the
Board as the exclusive representative of said employer's employees.
(b) Enforcing or maintaining its collective-bargaining contract with the above
employer entered into on or about January 23, 1964, or any modifications, extensions,
supplements, or renewal thereof, unless and until it shall have been certified as the
exclusive representative of said employer's employees.
(c) In any like or related manner, restraining or coercing employees of the above
employer in the exercise of their right to self-organization, to form labor organiza-
tions, to loin or assist any labor organization, to bargain collectively through rep-
resentatives of their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection and to refrain from any or
all such activities.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Post at its offices and meeting hall and at the plant of the above employer at
New York, New York, the attached notice marked "Appendix B." 33 Copies of such
notice, to be furnished by the Regional Director for Region 2, shall, after
being duly signed by an authorized representative of the aforesaid Union, be posted
immediately upon receipt and be maintained for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices to members and
to employees of said employer are customarily posted. Reasonable steps shall be
taken by the said Union, Local 199, to insure that such notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 2, in writing, within 20 days
from the date of receipt of this Decision and Recommended Order, what steps said
Union, Local 199, has taken to comply herewith.34
as See footnote 31, supra.
34 If this Recommended Order is adopted by the Board, this provision shall be modified
to read "Notify the Regional Director , in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Relations
Board, and in order to effectuate the policies of the National Labor Relations Act,
as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in United Mechanics' Union Local 150
F, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-
CIO, or any other labor organization by locking out our employees, or in any
other manner discriminating as to the hire and tenure or other term or condition
of employment of any of our employees.
WE WILL NOT recognize or contract with Local 199, Industrial Workers of
Allied Trades, as representative of our employees unless and until that organiza-
tion has been certified by the National Labor Relations Board as the exclusive
representative of our employees.
WE WILL NOT enforce the contract entered into with Local 199, Industrial
Workers of Allied Trades on or about January 23, 1964, unless and until the said
labor organization has been certified by the National Labor Relations Board
as the exclusive representative of our employees.
WE WILL, upon request, bargain collectively with United Mechanics' Union
Local 150 F, Amalgamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, as the exclusive bargaining agent of the employees in the appropriate
unit with respect to rates of pay, wages, hours of employment or other conditions
of employment, and, if an understanding is reached, embody such understanding
in a signed agreement.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The appropriate unit is:
All employees employed at our 423 Ninth Avenue, city and State of New
York plant, excluding office clerical employees, guards, and supervisors as
defined in the Act.
WE WILL offer to John Quirke, Harry Lalim, Richard Boyko, Herbert Kreisel-
man, Hans Weinert, and Louis Martino, upon unconditional application, im-
mediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges, and will
make them whole for any loss of earnings suffered as a result of the discrimination!
against them.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees, in the exercise of their rights to self-organization, to form, join, or assist
United Mechanics' Union Local 150 F, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing, and to en-
gage in other concerted activity for the purpose of collective bargaining or other
mutual aid or protection or to refrain from any or all such activities.
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of any labor organization.
JOSEPH WEINSTEIN ELECTRIC CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if
they have any questions concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Rela-
tions Board and in order to effectuate the policies of the National Relations Act, we
hereby notify our members that:
WE WILL NOT demand or accept recognition from, or contract with, Joseph,
Weinstein Electric Corp., as representative of its employees unless and until we
have been certified by the National Labor Relations Board as the exclusive rep-
resentative of its employees.
WE WILL NOT enforce the contract entered into with the above employer on
or about January 23, 1964, unless and until we have been certified by the National
Labor Relations Board as the exclusive representative of its employees.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce
employees of the above employer in the exercise of their right to organize; to.
form, to join, or assist, a labor organization; to bargain collectively through bar-
gaining agents chosen by themselves; to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection; to refrain
from any such activities, except to the extent that the right to refrain is limited
by the lawful enforcement of a lawful union-security agreement pursuant to
Section 8(a)(3) of the Act, as amended.
LOCAL 199 INDUSTRIAL WORKERS OF ALLIED TRADES,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Members and employees may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Tele-
phone No. 751-5500, if they have any questions concerning this notice or compliance
with its provisions.