Monsieur Henri Wines, Ltd.

National Labor Relations Board - Board Decisions

Oct 19, 1942

44 N.L.R.B. 1310 (N.L.R.B. 1942)

In the Matter Of MONSIEUR HENRI WINES, LTD., and HARRY FEINBERG,
RESPONDENTS and CHARLES TARASINSKY and DISTILLERY, RECTIFYING
& WINE WORKERS INTERNATIONAL UNION OF AMERICA, LOCAL #1,:
A. F. OF L., PARTY TO THE CONTRACT
Case No. C-0084.-Decided October 19, 191.
Jurisdiction : liquor reconditioning, labeling, and packaging industry..
Unfair Labor Practices.
Interference, Restraint, and' Coercion: entering into and enforcing illegal closed-
shop contract ; questioning employees regarding their union membership and
activities.
Discrimination: entering into and enforcing closed-shop contract by which em-
ployees, including those who had designated the contracting union as their
representative, were fraudulently deprived of employment.
Remedial Orders : abrogation of contract, reinstatement with back pay of em-
ployees discriminated against ; two employees now in military service to be
offered reinstatement upon application within 40 days after discharge from
the armed forces of the United States and given back pay from date of discrimi-
nation to date of enlistment and from date 5 days after application for rein-
statement to date of offer of reinstatement
Mr. Frederick R. Livingston, for the Board
Mr. Henry J. Buchman, of New York City, for the respondents.
Buitenkant d Cohen, of New York City, and Mr. Raymond S.
Norris, of Washington, D. C., for Local #1.
Miss Grace McEldowney, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed 1 by Charles Tarasinsky, the
National Labor Relations Board, herein called the Board, by the Re-
gional Director for the Second Region (New York City), issued its
complaint dated October 11, 1941, against Monsieur Henri Wines, Ltd.,
herein called the Wine Company, and Harry Feinberg, herein called
Feinberg,2 both of New York City, alleging that the respondents had
1 The original charge was filed by Fred Rachman and Maurice Cohen on February 20,
1941 ; a supplemental charge was filed by Ben Chasen and Hyman Chasanofsky on Feb-
ruary 21, 1941 ; and the above-mentioned amended charge, designated as "first amended
charge," was filed on October 10, 1941 -
2 The Wine Company and Feinberg are herein collectively referred to as the respondents.
44 N L. R. B , No. 248.
1310
MONSIEUR HENRI WINES, LTD. 1311
engaged in and were engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (3) and Section,2'(6),
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint, accompanied by notice of hearing,
were duly served.upon the respondents, upon the persons who had filed,
the original , supplemental, and amended charges, and upon Distillery,
Rectifying & Wine Workers International Union of America, Local
#1, A. F. of L., herein called Local #1.
With respect to the unfair labor practices, the complaint alleged in
substance : (1) that the operations of the Wine Company and Feinberg
constitute an integrated enterprise and that the policies of the Wine,
Company, including its labor policies, are determined by Feinberg;;
(2) that the respondents, on or about February, 11, 1941, discharged 11
named employees 3 and 7 other employees whose names were unknown
to the Board at the time of the issuance'of the complaint, and thereafter
refused to reinstate them, because they had applied for membership in,-
Local #1 and had engaged'in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, and
that the respondents thereby discriminated in regard to the hire and
tenure of employment of said employees; (3) that the respondents, on
or about February-11, 1941, entered into a closed-shop agreement with
Local #1, although it was not, at the time of the execution of said
agreement, the representative of the employees in the unit covered
by the agreement; (4) that the respondents urged, persuaded, and
warned their employees to refrain from aiding, becoming, or remain-
ing members of Local, #1; and (5) that by the for.•egoiiigl acts and
conduct, the respondents interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
On or about October 30, 1941, the respondents filed separate an-
swers, denying that they had engaged in the unfair labor practices.
alleged in the complaint and setting up certain affirmative matter by
way'of defense.
Pursuant to notice, a hearing was held on October 23, 24, and 27,,
1941, at New York City, before Howard Myers, the Trial- Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondents were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine,
witnesses, and to introduce evidence bearing upon the issues was of-•
forded all parties. During the hearing, the Trial Examiner granted
a motion of counsel for the Board to make the complaint more definite
3'Benjamui Bernstein , IIvinan Chasanofsky , Ben Chasen , Mmur,ce Cohen , Al Davis, Sey-
mour Kramer,' Joseph Proffman , Pied Ruchman , Jack Rachman, Leon Silverman, and',
Charles Tarasinsky ,
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.and certain by inserting in place of the words "seven other employees.
of the respondent whose names 'are at present unknown," the names
.of Aaron Weinstein , Leonard Kaminsky , Joseph Steiner , and Jack
-Yarrus. Subsequently , counsel for the respondents moved to strike
these four names from the complaint .' The Trial Examiner reserved
his decision on this,motion , which he thereafter granted ,in his Inter-
mediate Report on the ground that the record disclosed that Kaminsky
had never been in the r'espondents ' employ and that Weinstein,
Steiner, and Yarrus had been laid off, prior to the date of the alleged
unfair labor practices , for business reasons and not because they had
engaged in union activities . At the conclusion of the hearing, coun-
sel for the respondents made several motions either to dismiss the com-
plaint in its entirety or, in the alternative , to dismiss certain portions
thereof. Decision on these motions was reserved . The motion to
dismiss the complaint as to the Wine Company was thereafter dis-
posed of as hereinafter set forth ; the other motions to dismiss were
-denied by the Trial Examiner in his Intermediate Report. At the
close of .the hearing , a motion of counsel for the Board to conform the
-complaint to the proof was granted . Rulings on other motions and
on the admissibility of evidence were also made by the Trial Exam-
iner during the course of the hearing . The Board has reviewed all
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed . The rulings are hereby affirmed. At the conclusion
of the hearing the Trial Examiner afforded the parties an oppor-
tunity for oral argument and for the filing of briefs . Counsel for
the Board and for the respondents argued orally . A brief was filed
with the Trial Examiner by the respondents.
Thereafter, the Trial Examiner issued his Intermediate Report,
-dated January 29 , 1942, copies of, which were duly served upon the
parties. In the Intermediate Report he found that Feinberg, by
entering into and performing an invalid contract with Local #1,
requiring as a condition of employment membership therein, had
discriminated in regard to the hire and tenure of employment of his
employees , thereby encouraging membership in Local # 1, and that
he had interfered with, restrained , and coerced his employees in the
exercise of the rights guaranteed in Section 7 of the Act. The Trial
Examiner recommended that Feinberg cease and desist from these
unfair labor practices and that he take certain affirmative action de-
signed to effectuate the policies of the-Act . He further found that
Feinberg had not persuaded , urged, or warned his employees to re-
frain from aiding, becoming , or remaining members of Local #1,
and that the Wine Company had not engaged in unfair' labor prat--
tices as alleged , and recommended that the complaint be dismissed
insofar as such allegations were concerned . On March 5 and 12,
MONSIEUR HENRL• WINES, LTD. 1313
1942, respectively, Local #1 4 and Feinberg filed exceptions to the
Intermediate Report, and on April 23 and 30, 1942, briefs in support
of the exceptions.
Upon the request of Feinberg and Local #1, and pursuant to notice
to all parties, a hearing was duly held before the Board in Washing-
ton, D. C., on April 23, 1942, for the purpose of oral argument. Fein-
berg; and Local #1 were represented by counsel and participated in-
the hearing. On April 29, 1942, Local #1 filed a motion, accompanied
by an offer of proof, to remand the proceeding for further hearing.
The Board, having considered the offer of proof, finds that the proof
offered is immaterial to-the issues involved in this proceeding. The
motion is hereby denied. , The Board has considered the exceptions
and briefs filed by the parties and, insofar as the exceptions are in-
consistent with, the findings, conclusions, and order set forth below,
finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Monsieur Henri Wines, Ltd., is a New York corporation having its
office and principal place of business at 59 Chrystie Street, New York
City, where it is engaged in the sale and distribution of California
wines and related products. Its principal purchases are wines and
bottles. The wines are purchased outside, and the bottles within,
the State of New York. During the 6-month period immediately
preceding February 1, 1941, its total purchases amounted to approxi-
mately $4,000. , During the same period it sold, entirely within the
State of New York, approximately 30,000 bottles of wine, of an aggre-
gate value of $9,921.
Since December 1940, Harry Feinberg, the president and majority
stockholder of the Wine Company, has been engaged as an individual
in the business of reconditioning, labeling, and packaging wines,
liquors, and brandies for wholesalers and distributors of such prod-
ucts.5 His offices are located at 59 Chrystie Street, New York City,
but his reconditioning work is performed, chiefly in bonded ware-
houses located in the States of New York and New Jersey. He pur-
4 On February 10, 1942, Local #1, which had not appeared at the hearing, filed a
motion to intervene No action was taken on this motion since Local #1 was already a
party to the proceeding and had been duly served with copy of the complaint and notice
of hearing; as noted above
5 Early in 1940, a New Yolk State statute became effective which, prohibited licensed
wineries from engaging in the business of reconditioning , Labeling ; or packaging alcoholic
beverages belonging to other wineries, wholesalers , or distributors, Because this law
prohibited Monsieur Henri Wines , Ltd , from continuing in the reconditioning business,
Feinberg obtained a license which permitted him, as an individual , to engage in that
business
487498-42-vol 44--83
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chases no raw materials, and the merchandise- on which his work is
performed, as well as the labels and packages used,' remains the prop-
erty" of the wholesalers and distributors during the reconditioning
process. During the 6 months preceding February 1, 1941, Feinberg
reconditioned approximately 40,000 bottles of such =wines, liquors, and
brandies, having an approximate value of $75,000., More than 90
percent of this merchandise had been shipped into the State of New
York from points located in other States or in foreign countries; and
over 15 percent of the merchandise which Feinberg has reconditioned
since February 11, 1941, has been reshipped to other States by the
wholesalers and distributors. Feinberg admits that his work is per-
formed while the wines, liquors, and brandies are in commerce within
the meaning of the Act.
The record is clear that only employees of Feinberg are involved
in this proceeding. While it.is true that- Feinberg is the active head
and majority stockholder of the Wine Company, and dictates its labor
and business policies, as alleged in the complaint, there is no evidence
that the Wine Company has any control over the labor policies of,
or any financial or other interest in, Feinberg's individual business.
We shall, accordingly, dismiss the complaint as to the Wine Company.
II. THE ORGANIZATION INVOLVED
Distillery, Rectifying & Wine Workers International Union 6 of
America, Local #1, is a labor organization affiliated, with the Amer-
ican Federation of Labor.
C
III. THE UNFAIR LABOR PRACTICES
A. •hiterference, restraint, and 'coercion; the closed-shop agreement;
the discharges pursuant to the closed-shop agreement
Early in December 1940, Feinberg entered into a contract with
Comex Trading Company, hereinafter referred to as Comex, by which
he agreed to recondition, label, and pack certain wines owned by
Comex, which were then located at the bonded warehouse of Baker
Williams Company in New York City. On December 7, he com-
menced work on the Comex job with persons hired on 'that day, some
of whom had previously been in the employ of the Wine Company.
On February 10, 1941, the majority of, Feinberg's 14 employees 7
'Formerly known as wine , Liquor & Distillery Workers' Union , Local 20244, of the
American Federation of Labor.
The parties stipulated that Feinberg had 13 persons in his employ on February 10,
1941 However , i t appears from the record that, in addition to these 13 individuals, Al
Davis , who had previously been in Feinberg 's employ, reported for work at the usual hour
on February 11, 1941 The complaint alleged that Davis was employed by Feinberg on
February 11, 1941 , and Feinberg did not dispute this fact . We find , as did the Trial
MONSIE'TJR HENRI WINES, LTD. 1315
after discussing among themselves the desirability of union member- -
ship, selected 6 of their number as a committee to visit Local #1 all:d
to designate it as their bargaining representatives That evening after
work, the committee went to the headquarters of the Local and ex-
plained their mission to Benjamin Pross, its business manager. Pross
told them that he did not care to represent them because in 1937,
when Local #1 had attempted to organize the employees of the Wine
Company, Feinberg had been antagonistic and had persuaded the
employees not to join. However, after receiving their assurance that
the employees "would stick together" and "wouldn't let Mr. Feinberg
persuade [them] to.go the other way," Pross handed them application
cards, which they signed and returned to him.9 Pross told them that'
they were "as good as in," that he would notify Feinberg that Local
#1 represented his employees, and that- he would proceed immedi-
ately to bargain with Feinberg on their behalf. The committee then
left the union office.
Instead of communicating directly with Feinberg, Pross telephoned
to Sid Unger, the president of Comex, and told him that unless he in-
structed Feinberg to discontinue the work he was doing for Comex,
Local #1 would picket Comex and all its customers. Unger im-
mediately telephoned to Feinberg and told him to stop work until he
made "some arrangements with the union." Feinberg thereupon called
Pross, who informed him that Local #1 did not care to enter into a
contract with him and that Pross would do anything in his power "to
put him out of business." However, after a lengthy discussion, during.
which Feinberg promised to "be a good boy and come in the camp,"
Pross agreed to consider entering into a contract if Feinberg "deposited
a ten thousand dollar cash bond with the union." At'the conclusion of
this conversation, Feinberg telephoned to his attorney and,-after relat-
ing the conversations which he had had with Unger and Pross, re-
quested his attorney to ascertain what could be done in the matter
and "to find out'who made the complaint to the union."
Feinberg then asked four of his employees, who were waiting for
him in his office; "whether they knew of any discord among the rest of
Examiner, that Davis was in Feinberg s employ at the time of the alleged,discharge we
further find that the appropriate unit consisted of 14 persons, i e , Benjamin Bernstein,
Hyman Chasanofsky, Ben Chasen, Maurice Cohl;n, Louis Curiano, Al Davis (or Davison),
Seymour Kramer, Harry Lewis, Joseph (or Jake) Proffman, Fred Ruchman, Jack (or Jake)
Ruchman, Leon Silverman, Charles Tarasinsky, and Louis Taub
s According to Cohen's testimony, the committee, consisting of Chasen, Chasanofsky,
Cohen, Fred Ruchman , Silverman , and Tarasinsky , represented 10 employees in all At
the hearing Proffman and Kramer testified that they had authorized the committee to
des gnate Local #1 as-their representative ; Bernstein, Davis, and Jack Ruchman did not
testify It is not contended that the committee represented Curiano, Lewis, or Taub
9 Each member of the committee signed a card and a card was also signed in the, name of
Jack Rachman. The record is not clear whether he was present and signed the card per-
sonally or whether a member of the committee signed in his behalf.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the help." They told him that they knew of none. Concluding, how-
ever, that Fred Ruchman was "the instigator of the movement," and
wishing to ascertain whether he was "the one that had come up to the
Union and to find who was in that group that went," Feinberg tele-
phoned Ruchman's home and in his absence spoke to his brother Jack,
who denied any knowledge of what had happened. During their con-
versation Feinberg told Jack Ruchinan that he should not go-to work
the next morning; and that if he saw any of the other employees he
should tell them not to report.1' Similar instructions were given by
Feinberg to the employees who were with him at the time; and he also
told his foreman, Leo Mitnick, to go to the warehouse early in the morn-
ing to "make sure nobody started working."
On the morning of February 11, about 10 employees reported for
work at the usual hour.- Despite his instructions, Mitnick did not
appear at the warehouse. About half an hour after the arrival of the
employees, and while they were preparing to work, Louis Curiano was
called to the telephone and on his return reported that he had received
a message from Feinberg's office that they Were "to go home, there was
no more work." The employees thereupon left the warehouse. 'Joseph
Proffman and Benjamin Bernstein went to Feinberg's office; Charles
Tarasinsky, Ben Chasen, and Leon Silverman went to the headquarters
of Local #1; and Seymour Kramer and Hyman Cliasanofsky went'
to a nearby restaurant to await instructions from Tarasinsky.
At Feinberg's office, Proffman and Bernstein were questioned by
Feinberg and Mitnick regarding their union activities. A little later
Feinberg left, stating that he was going to keep an appointment with
Pross and that, since he had to' "tie up with the union" and "pay union
wages," he would "rather have union help" than his present employees.12
In. the meantime, Tarasinsky, Chasen, and Siherman, as stated' above,
had gone directly from the warehouse to the headquarters of Local
#1. On their arrival they were ushered into a vacant office by George
J. Oneto, a union official, who told them to remain there so that Fein-
berg, who was expected, would not see them.
10 The above facts regarding Feinberg s telephone conversation with Jack Ruchinan are
based on Feinberg's testimony Jack Ruchman was not called as a witness, but counsel
for the Boaid and for the respondents stipulated that if he were called, he would testify
that-during the above-mentioned telephone conversation Feinberg stated to him, among
other things, that "Fred was the instigator of the union movement, and that as a result
all the men working for Monsieur Henri wines or the Feinberg Company were discharged "
Without resolving the conflict of fact presented by the stipulation, we find that Feinberg
did not, in his conversation with Ruchman, discharge his employees
n Fred Ruchman, Jack Ruchman, and Maurice Cohen did not report for work at the
warehouse but went to Feinberg's office.
"These facts are based on Proffman's testimony • The Trial Examiner, who heard
and observed the witnesses, found Proffman a candid and forthright witness Although
Feinberg denied having talked to any of the employees named in the complaint either
before or after going to the union office, we find, as did the Trial Examiner, that he made,
in substance, the statements attributed to him by Proffman
MONSIEUR HENRI WINES, LTD.' -1317
When Feinberg arrived, accompanied by his attorney, he was taken
into Pross' private office, where he was shown a number of application
cards and was told by Pross that Local ,#1 represented a majority of
his employees'. After several hours of discussion, Feinberg signed a
closed-shop' agreement in the form in general use in the industry.
Feinberg admitted on the witness stand that he had not examined the
cards or asked for proof of Pross' statement before executing the
contract. but explained his failure to do so by saying that he had seen
about seven of.his employees, including Fred Ruchman, in the outer
office of the Local. It appears, however, and we find, that only three
of his employees were there at the time; that he did not see any of
them; and that Ruchman was then in Feinberg's own office.
Oneto told the employees who were waiting in the other room that
Feinberg had signed a contract with Local #1; and that since their
applications for membership had not yet been accepted, they could
not, "for the time being," work for Feinberg and in the meanwhile
he would have to "take on union 'men." Oneto also stated that the
applications would be considered within the next 2 weeks. On receiv-
ing this information, Taraskinsky and his companions left the office
and, after joining the employees who were waiting at the restaurant
and informing them of what had taken place, went with them to
Feinberg's office. There they were told by Feinberg, on his return,
"I think it was your fault, boys. Now you are left out in the cold." 13
Feinberg then paid the employees, at their request, the wages due
them, and they left the office. Since that time none of the employees
named in the complaint has worked for him, and he has employed only
men supplied by Local #1, as,required by his contract, except that on
one occasion, after asking permission of the Local, he hired Harry
Lewis for a brief time. The employees have not, since February 11,
asked Feinberg for employment; but on the evening of February 11,
Fred Ruchman and Maurice Cohen went to the headquarters of the
Local and were informed by Oneto, in response to their inquiries about
their jobs, that they were "out now and the union men" were in their
places, and that the Board [of Local #1] would have to meet 2 weeks
later to decide whether they were "union men." On or about February
25 they again went to the union office, and were then told by Oneto that
Local #1 had rejected the applications and that he could do nothing
for them.
"As stated in footnote 12, supra , Feinberg denied having said anything to these em-
ployees According to his testimony, he merely told Mitnick what had happened at the
union office and had him inform the employees that only those with "paid-up 'union,
books" could work for him thereafter. However, Tarasinsky and other witnesses' corrobo-
rated Profinan's testimony, and we find that Feinberg made the statement attributed to
him.
J318' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Conclusions concerning the unfair labor practices
The decisive question presented is whether, as Feinberg contends,
the closed-shop agreement was made in conformity with the proviso
to Section 8 (3) of the Act 14 and therefore operates as a defense to the
otherwise discriminatory discharges for non-membership in Local #1.
It is true, and we find, that on the day preceding the execution of
the agreement a majority of the employees designated Local #1 as
their bargaining agent.15 Such designation would normally, under
the proviso, empower an agent, which had not been assisted by unfair
labor practices, to enter into an agreement requiring membership as a
condition of employment. But the proviso was not intended, nor may
it be construed, to legalize a conspiracy between the designated agent
and the employer fraudulently to-deprive of employment all the em-
ployees, including those upon whose designations the agent's authority
depends. That. is manifestly the situation with which we are con-
fronted. When the employees delivered their application cards to
Pross he assured them that they were "a's good as in," and that the
Local would proceed to bargain on their behalf." But it is evident,
and we find, both from the course of events and from remarks made
by Oneto and Feinberg on the day when the agreement was executed,
that when the parties executed the agreement it was not intended that
the employees should be admitted to membership in Local #1, and
that the purport of the agreement was to close the shop against them
and to distribute their jobs to non-employee members of the Local .17,,
Local #1 thus repudiated its representative status, using the desig-
- 14 Section 8 (3) of the Act lirovides that' it shall be an unfair labor practice for an
employer-
"By discrimination in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor organization • Provided,
That nothing in this Act, or in the National ' Industrial Recovery Act (U S C, Supp VII,
title 15 sees . 701-712 ),, as amended from time to time, or in any code or agi cement
approved or prescribed thereunder , or in any other statute of the United States, shall pre-
elude an employer from making an agreement with a labor organization ( n(;t established.
maintained , or assisted by any action defined in this Act as an unfair labor practice) to
require as a condition of employment membership theiein , if such labor organization is the
representative of the employees as provided in Section 9 (a), in the appropriate collective
bargaining unit covered by-,such agreement when made."
• i5 As 'stated above , on February 10, 1941 , the six members of the committee had signed
cards designating Local #1 as their " representative and in addition thereto , at least three
oilier, employees , Jack Ruchman, Proffman , and Kramer , had also designated it to represent
them
ii That the Local would refrain from bargaining against their interest was in any
event implicit in its acceptance of their applications.
"That this was the purport of the agreement is evidenced,by Oneto's statement, im-
mediately after, the signing of the contract , that Feinbeig ' s employees could no longer
work for him , since their applications had not been passed on by Local #1, and that he
would have to "take on union men," and by Feinberg ' s remaik that if he had to "tie up
with the union" and "pay union wages,' ; he would "rather have union help" than the men
then in his employ , as well as by his later statement that it was their own fault that they
were "left out in the cold."
DMOIVSIE'LTR HENRI WINES, LTD. 1319
nation solely as a device to legalize its fraud. Feinberg, we find, was
aware of and participated in this scheme. As a consequence, the
agreement is not the culmination of bona fide collective bargaining
between an employer and a labor organization acting as the exclusive
representative of his employees, within the meaning of Section 9 (a),-
-but is an unlawful device for depriving the employees of their jobs,
and affords Feinberg no immunity under the proviso to Section 8 (3)
of the Act from his action in discharging the employees.
We accordingly find, as did the Trial Examiner, that Feinberg, by
entering into and enforcing said contract, discriminated in regard to
the hire and tenure of employment of his employees, thereby encourag-
ing membership in Local #1. We also find, as did the Trial Examiner,
that Feinberg, by entering into and enforcing said contract, and by
questioning his employees regarding their union membership and activ-
ities, interfered with, restrained, and coerced his employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
The complaint also alleges that Feinberg urged, persuaded, and
warned his employees.to'refrain from aiding, becoming, or remaining
members of Local #1. We find,'as did the Trial Examiner, that the
evidence does not support these allegations. 'We shall therefore dis-
miss the complaint insofar as they are concerned.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent Harry Feinberg, set forth in Section
III above, occurring in connection with his 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. I
V. THE REMEDY
Having"found that Feinberg has engaged in unfair labor practices,
we shall order him to cease and desist therefrom and to take certain
affirmative action which we find will effectuate the policies of the Act.
We have found that Feinberg has discriminated in regard to the hire
and tenure of employment of the employees listed in Appendix A.
We shall, therefore, order him to offer, to said employees, with the
exception of Ben Chasen and Leon Silverman, immediate reinstate-
ment to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges. We shall
also order Feinberg 'to make said employees whole for an' loss of
earnings they may have suffered by reason of his discrimination
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against them, by payment to each of them of a sum of money equal to
the amount he would normally have earned from the date of the dis-
crimination against him to the date of'the offer of reinstatement, less
his net earnings 18 during such period.
The record indicates that Ben Chasen and Leon Silverman are now
in the military service of the United States. We shall, therefore, order-
Feinberg, upon application by these two employees within forty (40)
days after their discharge from the armed forces of the United States,
to offer them reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges. We'shall further order^Feinberg to make these two em-
ployees whole for any loss of earnings they may have suffered by reason
of his discrimination against them, by payment to each of them of a
sum of money equal to the amount he would normally have earned as
wages during the periods (1) between the date of the discrimination
against hint and the date of his 'enlistment, and (2) between a date
five (5) days after his timely 19 application for reinstatement and the
date of -the offer of reinstatement, less his net earnings 20 during such
periods. '
We have further found that the contract entered into by Feinberg
with Local #1 on February 11, 1941, was an invalid contract. We
shall therefore order Feinberg to cease and desist from giving effect
to said contract, as well as to any extension, renewal, modification, or
supplement thereof, and to any superseding contract which may now
be in force. Nothing herein shall be taken to require Feinberg to vary
those wage, hour, seniority, and other substantive features of his rela-
tions with his employees which he has established in performance of
the said contract as extended, renewed, modified, supplemented, or
superseded. We shall also order Feinberg to withdraw all recognition
from Local #1 as the exclusive representative of his employees for
the purpose of dealing with him concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
18 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but foi his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local t590, 8 N L R. B 440 Monies
received for work performed upon Federal , State, county , municipal or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation Y. National Labor
Relations Board, 311 U. S. 7.
11 As provided in the preceding sentence.
20 See footnote 18, supra.
MONSIEUR HENRI WINES, LTD. - 1321
CONcrusIONS OF LAW
1. Distillery, Rectifying & Wine Workers International Union of
America, Local #1, A. F. of L., is a\labor organization, within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of the persons listed in Appendix A, thereby encouraging mem-
bership in Local #1, Feinberg has engaged in and is engaging in un-
fair labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing his employees in
the exercise of the rights guaranteed in Section 7 of the Act; Feinberg
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7),
of the Act.
5. Feinberg has not persuaded, urged, or warned his employees to
refrain from aiding, becoming, or remaining members of Local #1
as alleged in the complaint.
6. Monsieur Henri Wines, Ltd., has not engaged in the unfair labor
practices alleged in the complaint.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section' 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Harry Feinberg, New.York City, and his agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Encouraging membership in Distillery, Rectifying & Wine
Workers International Union of America, Local #1, A. F. of L:, or any
other labor organization by discharging, refusing to reinstate, or other-
wise discriminating in regard to the hire and tenure of employment
or any terms or conditions of employment of his employees;
(b) Recognizing Distillery, Rectifying & Wine Workers Interna-
tional Union of America, Local #1, A. F. of L., as the exclusive bar-
gaining representative of his employees;
(c) Giving effect to his contract of February 11, 1941, with Dis-
tillery, Rectifying & Wine Workers International Union of America,
Local $k 1, A. F., of L., or any extension, renewal, modification, or sup-
plement thereof, or to any superseding agreement or agreements: which
may now be in effect;
(d) In any, other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization;-to form,
0
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act
(a) Withdraw all recognition from Distillery, Rectifying & Wine.
Workers International Union of America, Local #1, A. F. 'of L.; as
the exclusive representative of his employees for the purpose of dealing
with him concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment ;
(b) Offer to the persons listed in Appendix A, with the exception-
of Ben Chasen and Leon Silverman, immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges ;
(c) Make whole the persons listed in Appendix A, with the excep-
tion of Ben Chasen and Leon Silverman, for any loss of earnings they
have suffered by reason of Feinberg's discrimination against them, by
payment to each of them of a sum of money equal to the amount which
he normally would have earned as wages during the period from the
date of the discrimination against him to the date of the offer of rein-
statement, less his net earnings during said period;
(d) Upon application by Ben Chasen and Leon Silverman within
forty (40) days after their discharge,from the armed forces of the
United States, offer them immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges;
(e) Make whole Ben Chasen and Leon Silverman for any loss of
earnings they may have suffered by reason of Feinberg's discrimina-
tion against them, by payment to each of them of a sum of money equal
to the amount he would normally have earned as wages during the
periods (1) between the date of the discrimination against him-and the
date of his enlistment, and (2) between a date five (5) days after his
timely 21 application for reinstatement, if any, and the date of the offer
of reinstatement, less'his net earnings during those periods;
(f) Post immediately in conspicuous places throughout his place of
business at 59 Chrystie Street, New York City, and maintain for a
period of at least sixty (60) consecutive days from the date of posting,
notices to his employees stating : (1) that he will not engage in the -
conduct from which he is ordered to cease and desist in paragraphs'
1 (a), (b), (c), and (d) of this Order; (2) that he will take the affirma-
tive action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this
21 As provided in paragraph 2 (d) of this Order.
0
MONSIEUR HENRI WINES, LTD. •1323
Order; and (3) that his employees are free to become and remain
members of any labor organization they wish to join, and that he will
not discriminate against any employee because of membership or
activity in any labor organization;
(g)_•Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith;
AND IT Is HEREBY ORDERED that the complaint be dismissed insofar as
it alleges that Harry Feinberg has persuaded, ui°ged, and warned'his
employees to refrain from aiding, becoming, or remaining members of
the Union';
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that Monsieur Henri Wines, Ltd., has
engaged in unfair labor practices within the meaning of the Act.
APPENDIX A
Benjamin Bernstein Joseph Proffman
Hyman Chasanofsky Fred Ruchman
Ben Chasen Jack Ruchman
Maurice Cohen Leon Silverman
Al Davis (also referred to in the Charles Tarasinsky record as
Al Davison)
Seymour Kramer