Merlin Novelty Co., Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1960

127 N.L.R.B. 359 (N.L.R.B. 1960)

MERLIN NOVELTY CO., INC. 359
are not now covered by any collective-bargaining agreements. The
Employer and Intervenor vigorously objected to this alternative re-
quest and the Petitioner offered no evidence whatsoever as to the ap-
propriateness of the alternative unit. As there is no evidence on which
to determine the appropriateness of the alternative unit, we deny the
Petitioner's request.
[The Board dismissed the petition.]
Merlin Novelty Co., Inc. and United Hatters , Cap & Millinery
Workers International Union , AFL-CIO and Local 144, Serv-
ice, Production and Maintenance Workers, Independent, Party
to the Contract
Local 144, Service, Production and Maintenance Workers, Inde-
pendent and United Hatters, Cap & Millinery Workers Inter-
national Union , AFL-CIO and Merlin Novelty Co ., Inc., Party
to the Contract . Cases Nos. 2-CA-6669 and P2-CB-P2638. April
25, 1960
DECISION AND ORDER
On December 16, 1959, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent Company and the Respondent Union had engaged in
and were engaging in certain unfair labor practices and recommend-
ing that they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Respondent Company filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent Company's exceptions, and the en-
tire record in the case, and hereby adopts the findings,' conclusions,
and recommendations z of the Trial Examiner.
1 We do not adopt the Trial Examiner ' s finding that the Respondent Union, by execut-
ing the illegal contract , violated the Act since the record clearly shows that the execution
date was more than 6 months prior to the filing of the charge against the Respondent
Union However, we do find that the Respondent Union, by maintaining and enforcing
the contract within the 6-month period, violated Section 8(b)(1)(A) and (2) of the Act.-
2 The Trial Examiner recommended that the Respondents be ordered jointly and
severally to reimburse all present and former employees for dues , fees , assessments, or
other moneys unlawfully exacted from them under the contract . We agree that re-
127 NLRB No. 54.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in these cases , and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that :
A. Respondent Merlin Novelty Co., Inc., its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from:
(a) Recognizing Local 144, Service , Production and Maintenance
Workers, Independent, as the exclusive representative of its employees
for the purposes of collective bargaining unless and until said labor
organization has been duly certified by the National Labor Relations
Board as the exclusive representative of such employees.
(b) Giving effect to the agreement of January 5, 1959, or to any
extension , renewal , modification , or supplemental or superseding
agreement unless and until the Respondent Union shall have been
certified in the manner stated above , and then only if the agreement
otherwise conforms to the provisions of the Act ; but nothing herein
shall be construed to vary or abandon the wages, hours , seniority, or
other substantive provisions of any such agreement.
(c) Giving effect to any checkoff cards authorizing the deduction
of union dues and/or initiation fees from wages or remittances to the
Respondent Union.
(d) Encouraging membership in the Respondent Union or in any
other labor organization of its employees by conditioning hire or
tenure of employment or any term or condition of employment upon
membership in, affiliation with, or dues payments to, such union, ex-
cept where such conditions have been lawfully established by an
agreement in conformity with the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(e) Sponsoring, assisting , or contributing support to the Respond-
ent Union or to any other labor organization.
(f) In any other manner interfering with, restraining , or coercing
its employees in the exercise of rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
imbursement is necessary to effectuate the policies of the Act; however, as the Respond-
ent Union , unlike the Respondent Company, was not charged until over 6 months sub-
sequent to the execution of the contract, the joint and several liability of the two
Respondents will be limited to the period beginning 6 months prior to the filing and
service of the charge against the Respondent Union As to such dues , fees, assessments,
or other moneys as may have been exacted from the employees under the contract prior
to the commencement of this period of joint and several liability , the Respondent Com-
pany shall be solely liable for reimbursement.
MERLIN NOVELTY CO., INC. 361
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Local 144, Serv-
ice, Production and Maintenance Workers, Independent, as the ex-
clusive representative of its employees for the purpose of collective
bargaining unless and until said labor organization has been duly
certified by the National Labor Relations Board as the exclusive
representative of such employees.
(b) In the manner and to the extent as set forth in the section
of the Intermediate Report entitled "The Remedy," as modified herein,
reimburse each of its past and present employees for moneys illegally
exacted from them.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to compute the sums to be refunded
under the terms of this Order.
(d) Post at its plant in Brooklyn, New York, copies of the notice
attached hereto marked "Appendix A." S Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by a representative of the Merlin Novelty Co., Inc.,
be posted by it 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 to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Post at the same places and under the same conditions as set
forth in (d), above, as soon as forwarded by the Regional Director,
copies of the notice attached hereto marked "Appendix B."
(f) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps it has taken to
comply herewith.
B. Respondent Local 144, Service, Production and Maintenance
Workers, Independent, its officers, representatives, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Merlin Novelty Co., Inc., its
officers, agents, successors, and assigns, to discriminate against its
employees in violation of Section 8(a) (3) of the Act.
(b) Giving effect to the agreement of January 5, 1959, or to any
extension, renewal, modification, or supplemental or superseding
agreement unless and until it has been duly certified by the National
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board as the exclusive representative of the Re-
spondent Company's employees; but nothing herein shall be construed
to vary or abandon the wages, hours, seniority, or other substantive
provisions of any such agreement.
(c) In any other manner restraining or coercing the employees of
the said Respondent Company in the right to engage in, or refrain
from engaging in, any or all of the activities guaranteed by Section 7
of the Act, except to the extent that such rights may be affected by an
agreement executed as authorized by the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) In the manner and to the extent as set forth in the section of
the Intermediate Report entitled "The Remedy," as modified herein,
reimburse each of Respondent Company's past and present employees
for moneys illegally exacted from them.
(b) Post at its business office, if any, copies of the notice attached
hereto marked "Appendix B." 4 Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being duly
signed by the Respondent Union's official representative, be posted
immediately upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter in conspicuous places where notices to mem-
bers are cutomarily posted. Respondent Union shall take reasonable
steps to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Mail to the Regional Director for the Second Region copies of
the notice attached hereto marked "Appendix B" for posting by the
Respondent Company at its plant in Brooklyn, New York, in places
where notices to employees are customarily posted. Copies of said
notice, to be furnished by the Regional Director, shall, after being
signed as provided above, be forthwith returned to the Regional
Director for such posting.
(d) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps it has taken
to comply herewith.
4 See footnote 3.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT recognize Local 144, Service, Production and
Maintenance Workers, Independent, as the exclusive representa-
MERLIN NOVELTY CO., INC. 363
tive of our employees for the purposes of collective bargaining
unless and until said labor organization has been duly certified
by the National Labor Relations Board as the exclusive repre-
sentative of such employees.
WE WILL NOT give effect to the agreement of January 5, 1959,
or to any extension, renewal, modification, or supplemental or
superseding agreement unless and until Local 144, Service, Pro-
duction and Maintenance Workers, Independent, shall have been
certified in the manner stated above, and then only if the agree-
ment otherwise conforms to the provisions of the Act; but nothing
herein shall be construed to vary or abandon the wages, hours,
seniority, or other substantive provisions of any such agreement.
WE WILL NOT give effect to any checkoff cards authorizing the
deduction of dues and/or initiation fees from wages or remittances
to Local 144.
WE WILL NOT encourage membership in Local 144 or in any
other labor organization of our employees by conditioning hire
or tenure of employment or any term or condition of employment
upon membership in, affiliation with, or dues payments to, such
Union, except where such conditions have been lawfully estab-
lished by an agreement in conformity with the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT sponsor, assist, or contribute support to, Local
144 or to any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist United Hatters,
Cap & Millinery Workers International Union, AFL-CIO, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL jointly and severally with Local 144 refund forthwith
to all former and present employees from whose wages we have
withheld or deducted funds for transmittal to Local 144, the
amount of any and all such deductions and withholdings, to the
end that each employee shall be promptly and completely reim-
bursed for any moneys so deducted and withheld.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named Union or any
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
MERLIN NOVELTY CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 144, SERVICE, PRODUCTION AND
MAINTENANCE WORKERS, INDEPENDENT AND TO ALL EMPLOYEES OF
MERLIN NOVELTY Co., INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT act as the exclusive representative of the em-
ployees of Merlin Novelty Co., Inc., for the purposes of collective
bargaining unless and until we have been duly certified by the
National Labor Relations Board as the exclusive representative
of such employees.
WE WILL NOT give effect to the agreement of January 5, 1959,
or to any extension, renewal, modification, or supplemental or
superseding agreement unless and until we have been duly cer-
tified in the manner stated above and then only if the agreement
otherwise conforms to the provisions of the Act; but nothing
herein shall be construed to vary or abandon the wages, hours,
seniority, or other substantive provisions of any such agreement.
WE WILL NOT cause or attempt to cause Merlin Novelty Co., Inc.,
to discriminate against its employees in violation of Section 8(a)
(3) of the Act.
WE WILL NOT in any other manner restrain or coerce the em-
ployees of Merlin Novelty Co., Inc., in the exercise of the right
to self-organization, to form labor organizations, to join or assist
United Hatters, Cap R, Millinery Workers International Union,.
AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from
any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
MERLIN NOVELTY CO., INC. 365
organization as a condition of employment as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL jointly and severally with Merlin Novelty Co., Inc.,
and in accordance with the Board's Order, refund forthwith to
all former and present employees from whose wages the Respond-
end Company has withheld or deducted funds for transmittal to
us, the amount of any and all such deductions and withholdings,
to the end that each employee shall be promptly, fully, and com-
pletely reimbursed for any moneys so deducted or withheld.
LOCAL 144, SERVICE, PRODUCTION AND
MAINTENANCE WORKERS, INDEPENDENT,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and served in each of the above-entitled cases; an order
consolidating said cases, a complaint and notice of hearing thereon having been
issued and served by the General Counsel of the National Labor Relations Board;
and answers having been filed by the above-named Respondents, a hearing involving
allegations of unfair labor practices in violation of Section 8(a)(1), (2), and (3)
and 8(b),(l)(A) and (2) of the National Labor Relations Act, as amended, was
held in New York, New York, before Trial Examiner Louis Libbin on October 28
and before Trial Examiner Whittemore on November 10 and 11, 1959.
All parties were represented at the hearing sessions. On October 28 Attorney
Peter J. Curley appeared for the Respondent Union.' Two days later, by letter,
this attorney notified Trial Examiner Libbin and the other parties that he was with-
drawing as counsel, the hearing then being in recess until November 9. Thereafter,
by wire of November 9, Trial Examiner Libbin extended the adjournment until
the following day, November 10. Before Trial Examiner Whittemore, who in the
interim had been assigned to the case by the Chief Trial Examiner, and at the
resumption of the hearing on November 10, Attorney Blottner entered his appear-
ance for the Respondent Union.
All parties were afforded full opportunity to be heard, to present evidence perti-
nent to the issues, and to examine and cross-examine witnesses. Counsel for
General Counsel and the Charging Union argued orally upon the record at the
.conclusion of the hearing. Counsel for the Respondent Union and the Respondent
Company were afforded opportunity to file briefs. No brief has been received.
Upon the basis of the entire record in the proceedings and from his observation
-of the witnesses (no witnesses were called before Trial Examiner Libbin), the Trial
-Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
Merlin Novelty Co., Inc., is a New York corporation with its principal office
and place of business in Brooklyn , New York, where it is engaged in the manufacture,
'As noted In "Statement of the Case" above, at the opening of the hearing on Octo-
ber 28, 1959, the Respondent Union was represented by Attorney Peter J. Curley. He
-thereafter withdrew from the proceedings, and Attorney Blottner appeared for the same
iparty at the resumption of the hearing on November 10.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sale, and distribution of toys, novelties, headwear, and related products. During the
past year this Respondent caused to be manufactured products valued at more than
$50,000 which were shipped from the said plant in interstate commerce directly
to States of the United States other than the State of New York.
The Respondent Company is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Hatters, Cap & Millinery Workers International Union, AFL-CIO, and
Local 144, Service, Production and Maintenance Workers, Independent, are labor
organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The chief issue raised by the complaint is whether or not the Respondent Employer
has unlawfully assisted the Respondent Union. The complaint further urges the
illegality of a contract entered into between the two Respondents.
It appears that Charles Weitzberg, as president and active head of the company,
began operations in Brooklyn under the name of Merlin Novelty Co., Inc., during
the last days of 1958, having previous to this time operated a similar business in
New York under another name. A few female employees who had been working
for him in New York were employed by him in his new plant shortly before
Christmas. Employees at the New York plant had not been represented by a labor
organization.
According to his own testimony, one Charles Roffel, while working in the vicinity
of Weitzberg's new plant, noticed equipment being moved into the building, "made
inquiries," found out that it was not a "union shop," and "thought that it was
time to go to work on the shop " The record does not disclose when, if ever, a
bona fide labor organization was formed by Roffel. The record does show, however,
that he and Weitzberg promptly signed a contract on January 5, 1959, at a time
when the Respondent Union had no membership among the Respondent's em-
ployees. Indeed, as will be noted more fully below, while it is established that
under conditions approaching duress employees eventually did sign dues authoriza-
tion cards, none of them at any time authorized the Respondent Union to represent
them in collective bargaining with this employer or any other.
B. The Employer's coercive assistance
Not only is there no evidence in the record that a single one of Weitzberg's some
50 female employees ever authorized either Local 144 or Roffel individually to
represent her in dealings with the Employer,2 but also there is substantial evidence
that no employee had even heard of the so-called "Local" until shortly before
Christmas, when Roffel came through the plant and announced to the working
employees that it was going to be a "union shop." He said nothing as to the name
of the Union, nor did he ask anyone to Join, then or at any other time.
Early in January one Matilda Jones, who directed the girls in their work, came
through the plant with William Weitzberg, brother of Charles and conceded by the
Respondent Company to possess management authority when at the premises, and
they distributed among the employees cards to be signed. These cards, in duplicate,
stated that the signer-
do hereby authorize and direct my employer to deduct from my wages and to
pay over to the Union, on notice from the Union, the Initiation Fees and such
regular Monthly Dues as may be established by the Union and become due to
it from me during the effective period of this Authorization
This record does not disclose how many employees signed such cards on this
occasion when William Weitzberg accompanied Jones in her distribution of them, or
on a later occasion when, as credible testimony establishes, Charles Weitzberg
similarly accompanied Jones on the same errand. On the other hand, neither
Respondent came forward with any credible testimony tending to show that any
specific employee ever signed such cards under circumstances which were voluntary
and not coercive.
Certain instances of the Employer's coercive action are briefly described below,
none of the testimony concerning them being specifically disputed:
2 Early in the proceedings counsel for the Respondent Union conceded that It had no
such authorizations.
MERLIN NOVELTY CO., INC. 367
1. Employee Lucille Jones was interviewed by William Weitzberg when first
hired on January 2, 1958. He asked her if she belonged to a union. She admitted
that she did and showed him her card. Weitzberg then told her, ". . . I don't
want to be bothered with any other union because I am going to organize this shop
with the Union."
2. A few days after Carey Ancrum was hired on January 6 Matilda Jones brought
her a card to sign . Ancrum, busy at work, asked her what it was. Jones said it was
"for the union." Without reading it, Ancrum signed. Some 4 weeks later she found
her pay short a dollar. She complained to William Weitzberg, who told her that a
dollar a week would be taken from her pay, and that she "would have to pay ten
dollars initiation fees and four dollars a month" dues. Despite her protest, dues
were deducted from her pay until she left in October.
3. Early in January Charles Weitzberg and Matilda Jones came to employee
Halley Kelly and other nearby girls with cards. Weitzberg said, "Girls, this is a
union. You girls are going to join the union." Kelly asked to take the card home.
Weitzberg refused. She explained that she could not sign without her glasses. He
instructed her, "You bring your glasses in tomorrow and you sign." The next
morning Weitzberg brought her the card again and she signed.
4. When hired by Charles Weitzberg in March 1959, employee Nona Miller was
sent by him to his secretary to sign papers. Among these papers was a blank dues-
deduction authorization card which she signed-not in the space for the employee's
signature, but in the blank space where the Employer's name was supposed to be.
She did not read the card, but 4 weeks later found her pay short. She went to
William Weitzberg and protested, but the Employer nevertheless continued to deduct
money from her pay.3
C. The contract
It has been found that the employees at this plant have never authorized the
Respondent Union to represent them. Nor is there any evidence that any employee
ever "joined" this organization in the accepted sense of the term. No membership
roll, or list, was produced.
Yet there are in evidence three documents which the two Respondents apparently
consider to be contracts. As the record plainly reveals, both Roffel and Charles
Weitzberg were in confused disagreement as to what they signed as well as both
when and where. And while the testimony is equally confused as to who drafted
what and when, it appears that the text of each was drafted-not by Roffel or any
employee-but by Albert Gillman, of Albert Gilman Associates, who appeared at
the hearing as representative of the Respondent Employer.
One so-called contract, placed in evidence early in the proceedings by General
Counsel--tea document which had been submitted to him prior to the hearing by
the Respondent Company as the existing contract-contains the following text, in
part, under the "Union Shop" provision:
All employees may make application for membership in the Union after thirty
(30) days . . . etc. [Emphasis supplied.]
While Roffel was being questioned, as a witness , concerning this text, counsel for
the Union handed the Trial Examiner a purported copy of it for his examination.
The Matter document, obviously an original typed document, bearing only the signa-
ture of Charles Weitzberg, contains the following language under the same "Union
Shop" provision:
All employees eligible shall make application for membership . .. etc. [Em-
phasis supplied.]
Roffel, confronted with the difference in language in the two documents, floun-
dered in his reply and finally admitted, "I don't know how I have this one,"
referring to the last mentioned.
And when Weitzberg was queried about the same document, he said:
I would say-well, I couldn't say. This appears to be my signature. I know
that I signed a group of contracts at one time.
Somewhat later counsel for the Union offered and placed in evidence still a third
document which he identified as "I am pulling this out of the hat," and which appears
to be a carbon copy of the document which General Counsel had originally placed
in evidence.
O The record contains uncontradicted testimony as to other examples of employer
coercion in obtaining signatures to such cards. Believing them cumulative, the Trial
Examiner considers it unnecessary to describe them in detail.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The state of the record does not permit a clear finding as to which contract, if
any, was actually signed by the two parties. It was conceded during the hearing
that copies were never submitted to the employees whom any contract covered. In
circumstances where contracts were so easily brought forth from "the hat," it seems
probable to the Trial Examiner that the original document , signed on January 5,
1959, contained the mandatory "shall" in the union-shop clause, and that either
after the charge or the complaint was filed another document was drawn up and
dated back to January 5 which contained the permissive "may," in the hope that the
difference between "may " and "shall" would determine the lawfulness of the
contract.
Both documents , if contracts , are equally unlawful , in the opinion of the Trial
Examiner . Each grants exclusive recognition to Local 144 which , as noted above, at
no time has been the designated representative of a single employee in collective
bargaining . The organization has no members.
In the opinion of the Trial Examiner these agreements are merely instruments of
fraud, designed to victimize the Respondent Company's employees by requiring them
to pay to Roffel and his so -called labor organization monthly tribute , in order that
there might appear to be in existence a recognized collective-bargaining agent to
keep out of the plant a legitimate labor organization.
That Roffel's Local 144 is considered by Weitzberg to be his own "hex sign" is
further indicated by the undisputed fact that late in March , on the latter of the only
two occasions when this self-appointed business representative took the trouble to
talk to the assembled employees, both times being at the plant, such employees were
physically prevented from leaving the plant by the foreman 's locking the doors. At
this "meeting" Roffel spoke against the Charging Union , which then was apparently
attempting to organize, and warned them that the plant was a "closed union shop"
and that they must belong to Local 144 in order to work there.
D. Conclusions
The Trial Examiner concludes and finds that the Respondent Employer, by requir-
ing its employees to sign dues authorization cards, thereafter deducting dues and
initiation fees for payment to the Respondent Local 144, and by effectively causing
its employees to believe that they must be considered members of Local 144 in order
to retain employment , as well as by entering into the above -described contract or
contracts , has discriminated against them as to their terms and conditions of em-
ployment by unlawfully encouraging membership in Local 144, has illegally assisted
the said labor organization , and has deprived its employees of rights guaranteed by
Section 7 of the Act. It is also concluded and found that by entering into the
aforesaid contract or contracts, the Respondent Union has caused the Respondent
Employer to violate Section 8 (a) (3) of the Act and has also restrained and coerced
employees in the exercise of their rights under the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents , set forth in section III , above, occurring in
connection with the operations of the Respondent Employer 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 obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, the
Trial Examiner will recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent Employer has illegally assisted and con-
tributed support to the Respondent Union , and that the Respondents have entered
into, maintained , and enforced an illegal contract or understanding pursuant to which
fees and dues have been checked off by the Respondent Employer. It will therefore
be recommended that the Respondents : ( 1) Cease and desist from giving effect to
said contract or understanding , or any other contract or understanding which may
now be in force ; and (2) jointly and severally reimburse all present and former
employees at the Respondent Employer's plant for any dues, fees , assessments or
other moneys that have unlawfully been exacted from them. It will also be recom-
mended that the Respondent Employer withdraw and withhold all recognition from
the Respondent Union as the representative of any of its employees for the purposes
THE LENNOX-HALDEMAN CO. 369
of dealing with it concerning grievances , labor disputes , wages, rates of pay, hours
of employment , or other conditions of employment , unless and until said Respondent
Union shall have demonstrated its exclusive majority representative status pursuant
to a Board-conducted election among said employees.
Finally, in view of the plainly demonstrated intent on the part of both Respondents
to deprive employees of their guaranteed rights under the Act, it will be recom-
mended that they cease and desist from in any manner infringing upon said rights.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Hatters , Cap & Millinery Workers International Union, AFL-CIO and
Local 144, Service , Production and Maintenance Workers, Independent, are labor
organizations within the meaning of Section 2(5) of the Act.
2. By contributing support to Local 144, Service, Production and Maintenance
Workers, Independent , the Respondent Employer has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment and other
terms and conditions of employment of employees, thereby encouraging membership
in a labor organization , the Respondent Employer has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent Employer has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
5. By causing and attempting to cause the Respondent Employer to discriminate
against employees within the meaning of Section 8(a) (3) of the Act, the Respondent
Union has engaged in and is engaging in unfair labor practices within the meaning
of Secton 8(b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Respondent Union has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act.
7. The unfair labor practices found herein are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
The Lennox -Haldeman Co. and Richard Logan
International Hod Carriers, Building & Common Laborers of
America, Local No. 310 , AFL-CIO and Richard Logan. Cases
Nos. 8-CA-1822 and 8-CB-355. April 25, 1960
DECISION AND ORDER
On December 10, 1959, Trial Examiner Eugene F. Frey issued his'
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of. the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondents
had not engaged in certain other alleged unfair labor practices and
recommended that the complaint be dismissed as to these allegations.
Thereafter the Respondents filed exceptions to portions of the Inter-
mediate Report, and supporting briefs.
127 NLRB No. 49.
560940-61-vol. 127-25