National Silver Co.

National Labor Relations Board - Board Decisions

Jun 16, 1943

50 N.L.R.B. 570 (N.L.R.B. 1943)

In the Matter of NATIONAL SILVER COMPANY and WHOLFSALE & WARE-
HOUSE WORKERS UNION, LOCAL 65, C. I. O.
Case No. C-2558-Decided June 161 19V
DECISION
AND
ORDER
On March 24, 1943, the Trial Examiner•issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
annexed hereto,. Exceptions to the Intermediate Report and
briefs in support of the exceptions were thereafter filed by the
respondent and the Fourth Association. The Board has considered
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 Intermediate Report,,the exceptions
and briefs, and the entire record in the case, and hereby sustains the
exceptions to the extent indicated below. In all other respects the
Board hereby adopts the findings, conclusions, and recommendations
made by the Trial Examiner.
1. The Trial Examiner has found that the respondent dominated
and interfered with the administration of, and contributed support
to, each of the four Associations, in violation of Sections 8 (1) and
(2) of the Act. Insofar as this finding applies to the First Associa-
tion, we agree with the Trial Examiner and hereby affirm and adopt
his finding? But we are not fully satisfied that the Second, Third,
and Fourth Associations were heirs to the infirmities of the First As-
sociation. Rather, we believe that the respondent wiped the slate
clean by posting its notice,of July 9, 1940, disestablishing the First
Association as the bargaining representative of its employees. We
do not believe that the circumstances under which the Second Associa-
i Since, as we point out below, the First Association was disestablished by the respondent
in July 1940, our Order herein will not include any provision based on the respondent's
domination and support of the First Association.
50 N. L. R. B., No. -84.
570
NATIONAL SILVER COMPANY 571 ,
tion was -formed involved domination or support, within the mean-
ing of Section 8 (2) of the Act. We are of the opinion, however,
and we find that the respondent rendered assistance to the Third
Association at a time when the Union, a rival labor organization, had
apprised the respondent of its claim to represent the respondent's,
employees for collective bargaining purposes. Thus, the respondent
expressed its strong hostility to the Union and isolated Berkowitz,
one of the Union's most active members, from her fellow employees
during the height of the Union's organizational campaign, while at
approximately the same time the respondent accepted, without ques-
tion the Third Association's claim to majority standing and hastily
granted that organization recognition and a contract including, among
its terms, substantial wage increases. ' Although we are not fully
satisfied that the respondent's conduct in connection with the Third
Association constituted domination or support within the meaning of
Section 8 (2) of the Act, and we hereby set aside the Trial Exam-
iner's finding to this effect, we believe and find that the above and
other conduct, described in the Intermediate Report constituted
-assistance to the Third Association, and interference, restraint, and
coercion, within the meaning of Section 8 (1) of the Act. In view of
this unlawful assistance to the Third Association we find that the
respondent's employees, in selecting the Third Association and its
successor, the Fourth Association, as their representatives, were not
acting with the complete freedom of choice which the Act contem-
plates. Accordingly we shall order the respondent to withdraw and
withhold recognition from the Fourth Association as the representa-
tive of any of its employees for the purposes of collective bargaining,
until such time as the Association may be certified as their representa-
tive by the Board.2 We further find that the contract entered into be-
tween the respondent and the Third Association was unlawful,3 and
that the subsequent contract executed on June 15, 1942, with the
Fourth Association, successor to both the Second and Third Associa-
tion, is equally invalid, since these contracts perpetuate the respond-
ent's unlawful assistance to the Association. We shall therefore order
the respondent to cease giving effect to the contract of June 15, 1942,
as well as to any extension, modification, renewal, or supplement
thereof, or to any superseding contract with the Fourth Association,
or any successor to that organization,, which may now be in force.
Nothing in our Order shall be interpreted, however, to require the
respondent to vary the wages, rates of pay, hours, and other substan-'
tive features of its relations with its employees which the respondent
2 Cf Matter of Heather Handkerchief Works , Inc , 47 N . L. R. B. 800; Matter of Wayne
Works, 47 N. L. R. B., No. 184; Matter of Interstate Folding Bow Company, 47 N. L R B.
1192.
8 This contract expired,July 1, 1942.
572 DECISIONS OF NATION"AL' LABOR RELATIONS,BOARD
may, have established pursuant to these contracts, as extended,
renewed, modified, supplemented, or superseded.,
2. The Trial Examiner has found that the respondent refused to
bargain collectively with the Union as the exclusive representative of
its employees in an appropriate bargaining unit, within the meaning
of Section 8 (5) of the Act., We do not believe that the record sup=
ports this finding, which is • hereby reversed. We are not entirely
convinced by the record that the Union represented a majority of the
responde'.it's employees in an appropriate bargaining unit at the
critical dates on which it sought to bargain with the respondent.
Moreover, we do not agree with the Trial Examiner's evaluation of the
evidence concerning the bargaining conferences between the Union
and the respondent. We find that'at the June 26, 1941, conference the'
Union agreed to show its membership cards to counsel for the respond-
ent in order to satisfy the respondent's asserted doubt as to the Union's
majority, but that thereafter the Union at least twice, failed and
refused to present its cards and never, so far as the record shows,
displayed a willingness to comply with its undertaking.4 We further
find that the Union at the July 1, 1941, conference and thereafter sug-
gested as appropriate a unit different from that originally proposed
by it and from the one found herein to be appropriate, and that the
respondent did not agree that ' this suggested unit was appropriate.
Under the circumstances, we do not believe that the record establishes
a refusal by the respondent to bargain collectively with the Union, and
we shall dismiss the complaint insofar as it alleges violation of Section
8 (5) of the Act.
ORDER
Upon the basis of the above findings of fact and the entire record in
the case, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
respondent, National Silver Company, New York City; and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Recognizing or in any manner dealing with National Silver
Employees Association (Fourth Association), or any successor thereto,
as the representative of any of its employees for the purpose of collec-
tive bargaining with respect to grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment,
unless and until said organization shall have been certified by the Board
as the representative of its-employees;
(b) Giving effect to the contract of June 15, 1942, with National
Silver Employees Association (Fourth Association), or to any modifi
* Cf. Matter of Huch Leather Company, 11 N. L. R. B . 394, 401.
NATIONAL SILVER COMPANY 573
cation, supplement, extension, or renewal thereof, or to any other
contract made with said organization, or any successor thereto;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, 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, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold recognition from National Silver
Employees Association (Fourth Association), or any successor thereto,
as the representative of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment,
unless and until said organization shall have been certified by the
Board as the representative of the employees;
(b) Post immediately in conspicuous places on every floor of its
New York City plant, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent-will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b), and
(c), of this Order; and (2 ) that the respondent will take the affirmative
action set forth in-paragraphs 2 (a) and (b) of this Order;
(c) Notify the Regional Director for the Second Region (New York
City) 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 FURTHER ORDERED that the complaint be, and it
hereby is, dismissed, insofar as it alleges: (1) that the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act, with respect to the Second, Third,
and Fourth Associations; and (2) that the respondent has engaged- in
and is engaging in unfair labor practices, within the meaning of
Section 8 (5) of the Act.
INTERMEDIATE REPORT
Mr. Jack Davis and Mr. Vincent M. Rotolo, for the Board.
Brill, Bergenfeld & Brill, by Mr. Abrah&m, Brill, and Mr. Frank F. Bergen feld,
of New York City, for the respondent.
Mr. Max Ehrlich, of New York City, for the intervenor.
Mr. David Livingston and Mr. Jay Tabb, of New York City, for the Unidn.
STATEMENT OF THE CASE
Upon a fourth amended charge duly filed on August 5, 1942, by Wholesale &
Warehouse Workers Union, Local 65, C. I. 0., herein called the Union, the National
Labor Relations Board, herein called the Board,, by its Regional Director for the
1
574 ' DIEC'ISJ01I'S OF NATIONAL LABOR RELATIONS BOARD'
Second Region (New York City), issued its complaint dated December 15, 1942,
against National Silver Company, a corporation, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor'
practices within the meaning of Section 8 (1), (2), and (5) and Section 2 ;(6);
and (7) of the National Labor Relations Act, 49.Stat. 449, herein called the Act.
Copies of the complaint and notice of hearing were duly served upon the respondent,
the Union, the National Silver Employees Association, herein called the Fourth
Association, and employees of National Silver Company, herein called the Third
Association.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) from July 1941 to date vilified and disparaged the
Union, interrogated its employees concerning their union affiliations, urged and
,threatened its employees to assist or become members of the Third and Fourth
Associations, and offered wage increases to its employees in July 1941 to dis-
courage membership in the Union and to encourage membership in or assistance
to the Third Association; (2) since June 1937 formed and sponsored The National
Silver Company Employees' Association, herein called the First Association,
National Silver Employees' Association, herein,called the Second. Assoc! ation,' the
Third Association, and the Fourth Association; and from'1937 to date dominated,
assisted, contributed to the Support of, and interfered with the administration
of, each of the four associations ; (3) on and after June 26, 1941, refused to bargain
collectively with the Union as the exclusive bargaining representative of all of the
,"inside" employees of the respondent employed at its New York plant, exclusive
of buyers, assistant buyers, salesmen, executives and supervisory employees,
alleged to constitute, an appropriateunit..
On December 22, 1942, the respondent filed its answer denying the commission
of any unfair labor practices.
Pursuant to notice, a hearing was held at New York City, from January 11 to
February 4, 1943, before Will Maslow, the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. At the commencement of the hearing the
Trial Examiner granted a motion to intervene filed by the Fourth Association.
The answer of the Fourth Association denied that it had been formed or sponsored
by the respondent or that the respondent had dominated it, contributed to its sup-
port, or interfered in. its'administration and likewise denied that it was the suc-
cessor to the Third Association. A motion to intervene made by the attorney for
the Third Association, who was likewise the attorney for the Fourth Association,
was denied by the Trial Examiner upon the statement of its counsel that it was
no longer in existence.'
The Board, the respondent, and the Fourth Association were represented by
counsel and the Union by lay representatives ; all participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce, evidence bearing on the issues was afforded all parties At the close
of the Board's case and again at the close of the hearing, the attorneys for the
'The names 'of the Second Association and the Fourth Association are identical except
for an apostrophe ; the complaint alleged that all four associations together comprised a
single labor organization, of in the alternative that each was a separate organization, the
Second having been successor to the First, the Third to the Second, and the Fourth to the
Thii d
7 During the hearing, the Trial Examiner granted a motion of the attorney for the Board
to amend the description of the alleged appropriate unit so that it likewise excluded heads
of departments, assistants to heads of departments, and secretaries to officers or executives.
The terms buyer and assistant buyer are synonymous, respectively, with head of department
and assistant to head of department
8 The attorney for the Fourth Association was, however, permitted by the Trial Examiner
to offer evidence throughout the hearing as to each of the four associations.
NATIONAL SILVER COMPANY 575
respondent and the intervenor moved to dismiss the complaint and various
paragraphs thereof. These motions were denied.
At the close of the hearing, all parties moved to amend their respective pleadings
to conform to the evidence adduced with respect to "names and dates." These
motions were granted.
All parties were afforded the opportunity to, argue orally before and to submit
briefs to the Trial Examiner. The attorney for the intervenor argued orally and
waived the filing of a brief. All other parties waived oral argument and the filing
of briefs.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT'
National Silver Company is a New York corporation engaged in the manu-
facture and sale of cutlery, flatware, and related products. It operates manu-
facturing plants in Taunton, Massachusetts, and in Brooklyn, New York, and
maintains its, principal office, showroom, and warehouse in New York City, here-
inafter referred to as the New York plant. The annual sales of the respondent
from its New York plant are about $3,500,000, about 80 percent of which is
shipped by the respondent from its New York plant to points outside the State
of New York. The respondent purchases annually from $2,625,000 to $2,800,000
of various products, about 10 percent of which is shipped to the New York plant
from points outside the State of New York. It sells at wholesale only.
II. THE ORGANIZATIONS INVOLVED
Wholesale & Warehouse Workers Union, Local 65, C. I. 0, and National Silver
Employees Association, are each labor organizations admitting to membership
employees of the respondent. The National Silver Company Employees' Asso-
ciation, National Silver Employees' Association, and, Employees of National
Silver Company were each labor organizations. -
III THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and adininistiation of the
First, Second, Third, and Fourth Associations
1. The First Association
In June 1937, employee Edward- Wolman, an adjustment clerk, who was also
known as head of the respondent's adjustment department, asked permission of
Samuel E Bernstein, president of the respondent, to conduct a meeting of em-
ployees in the shipping room fifteen minutes before their regular quitting time.
Wolman told Bernstein that he and a number of other employees wished to form
an organization for their mutual benefit. Permission was granted and the meet-
ing was held in the shipping room Wolman addressed the employees, told them
that "in view of the current headlines and conditions" there was a probability
of affiliation with outside labor organizations, and suggested instead "that w°
could have our organization ourselves." ` Philip J. Bernstein, vice president of
4 The findings in this section are based upon a stipulation of the parties
9 The above findings are based on the testimony of Wolman , who at the time of the hear-
ing was assistant to the personnel manager and admittedly a supervisory employee.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent and a " son of Samuel E. Bernstein , also spoke at the meeting
about the advantages of an "inside" organization' The group then decided to
meet again at a nearby hotel. I
On June 14, 1937, the meeting was held, a constitution adopted, and officers
elected, Wolman being chosen president . The organization was named "The
National Silver Company-Employees' Association" and dues were fixed at 25
cents a month.
On June 18, 1937, the grievance committee of the First Association submitted
to the respondent a written list of wage and hour demands. The first sentence
thereof read "On June 4th, the employees of this company congregated with
your approval and formed an association called `The National Silver Company
Employees' Association.' " On July 1, 1937, following several conferences with
the management a contract was signed between the respondent and the First
Association. Other contracts were executed in 1938 and 1939.
The First Association met monthly thereafter, announcements of the meet-
ings being posted on the respondent's two bulletin boards, over the signature of
Wolman.' The dues of the Association were collected in the shipping room by
Nathan Arstark, the head checker, hereinafter found to be a supervisory em-
ployee.' His wife was treasurer of the Association and he was,a member of its
grievance committee.'
In November, 1937, employee Betty Phillips, treasurer of the Association, bor-
rowed $25 from Bernard Bernstein, the assistant treasurer of the respondent and
a son of S. E . Bernstein, in order to pay a deposit on a ballroom hired by the
Association. Phillips explained to Bernstein that she did not have the $25, but
expected to collect Association dues soon to cover the loan. The loan was there-
after repaid'
The Association continued to function thereafter until the summer of 1940,
Wolman being re-elected president each year.
In the fall of 1939, the Union began to organize the respondent's employees and
on March 21, 1940, filed a charge with the Bbard accusing the respondent of
the illegal discharge of Aaron Weissman- and two other employees. On April
30, 1940, an amended charge was filed which contained the additional accusation
that the First Association was a company-dominated union.
On June 11, 1940, Wolman who was then president of the Association, reported
at a meeting of the Association his conferences with Wallace Miller, a field exam-
iner of the Board who was investigating the charges filed by the Union. Accord-
ing to the minutes of the Associatiton, which Wolman described as accurate, he
reported the results of Miller's investigation and advised the group that "as
1, 8 This finding is based upon a written statement signed in 1940 by employee Sydney
Breindel. Breindel testified that all he recalled at present was that one of the Bernstein
brothers spoke , but that if he had signed the statement , it was true . Wolman testified he
could not remember any of the speakers.
4 Harry Greenberg , who supervised the respondent ' s labor relations until the end of 1940,
testified he saw such notices on the bulletin boards and did not tear them off. Henry
Gessner, the respondent 's general manager, who was also its personnel director , also saw
such notices.
8lnfra, page 21.
8 The above finding is based on the testimony of Phillips and Bernard Bernstein. The
minutes of the Association for May 23 , 1940, also recite that the Association planned a
boat ride on August 11, 1940, tickets being $1 each, and that "Bernard Bernstein offorded
[offered?] to buy a block of one, we mean ten or twenty tickets for those who could not
afford the price of admission " Bernard Bernstein denied any such offer stating that he
had bought a "group of tickets " for his personal friends , not employees . Although his
denial is credited , the undersigned finds that such an offer was related at the meeting,
without challenge or questioning by anyone present, which is symptomatic of the relation-
ship between the respondent and the First Association.-
NATIONAL SILVER COMPANY 577,
long as a majority- of members of the National Silver Company [Employees' As-
sociation ] desire an employees' association, they may dissolve the
present one,
and form a new association guarding against the ills which declared this one _
illegal." , Wolman pointed out, however, that the respondent might not accept
Miller's findings and that a hearing would then be held. He also reported that
Miller had charged him with being a supervisory employee.
The group then proceeded to elect members of a committee to negotiate a new
contract with the respodent and discussed the demands to be negotiated.'
Between June 11 and August 25, 1940, at least three meetings of the Associa-
tion were held, of which no minutes were taken. Sometime early in July at a
meeting at which Wolman presided," and of which notice was given by the
customary bulletin board notice, there was a discussion as to the future of
the Association, Wolman having announced that the Association must disband.
At the suggestion of employee Aaron Weissman, Esther Letz, a representative
of the Union, spoke. Following her remarks a committee was chosen to investigate
the Union.
The committee appointed to investigate the Union met at the Union's office
and decided to call a meeting of the employees at the Union headquarters. On
the same night as the scheduled meeting at the Union' s office," a notice was, -
however, posted on the respondent's bulletin board over Wolman's signature
announcing a meeting of the Association at the regular meeting place, the Cornish
Arms Hotel.
About a week or two after the committee's appointment a second meeting was
held at which Wolman presided. The date of this meeting was fixed by Weiss-
man, and the undersigned so finds, as July 15 or July 16, 1940. Notice of this
meeting was given by the customary bulletin board announcement. The mem-
bers of the committee reported on their visit to the Union and then a vote
was had by secret ballot, the voters being asked to mark their ballots "Asso-
ciation" or "Local 65" The vote was in favor of the Association. Wolman
presided at the opening of the meeting, but thereafter Fallick took over-the chair.
On July 9, 1940, the respondent posted the following notice' on its bulletin
boards, pursuant to an oral agreement with the Regional Officers of the Board:"
NOTICE TO ALL EMPLOYEES
National Silver Company hereby notifies all employees that it will not
now or at any future time recognize the National Silver Company Employees
Association as a representative of any of its employees for the purpose of
dealing with the company concerning grievances, labor disputes, wages,
10 The undersigned finds it unnecessary to resolve the conflict in the testimony of
Wolman and witnesses for the Board that Wolman had reported to the Association at the
June 11, 1940 , meeting that all that had to be done was to change the name of the
Association
"Saul Fallick, a witness who was by no means friendly to the Board or the Union,
testified that Wolman presided at these meetings until Fallick was elected president on
August 25, 1940 Wolman himself admitted that he had presided at a meeting after June
11, 1940, for at least part of the session, but denied presiding thereafter. Weissman
testified that Wolman presided at two meetings after that of June 11, 1940. The under-
signed accepts Weissman 's testimony.
17 This finding is based on the testimony of employees Ida Berkowitz and Fallick.
33 Wolman originally testified , during his examination by respondent 's counsel , that he
thought there were meetings of the First Association after the disestablishment notice was
posted. Two weeks later, when Wolman was recalled to the witness stand, he testified
that he could not say whether the first meeting after the June 11, 1940, meeting was held
before or after the disestablishment notice was posted. The undersigned credits his
original testimony. '
578 DECISIONS, OF. NATIONAL LABOR RELATIONS BOARD
rates of pay, hours of employment or'other conditions of work, and )dis-
establishes the National Silver Company Employees Association as such
representative.
National Silver Company will cease giving effect to the contract entered
into July 1, 1939 between National Silver Company and the National Silver
Company Employees Association.
National Silver Company recognizing 'the right of its employees to self-
organization, to form, join or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor Relations
Act, states that it and its officers and agents :
(1) Will not in any manner interfere with, restrain or coerce its employees
in the exercise of the above rights.
(2) Will not discourage membership in any labor organization by dis-
couraging or threatening to discharge any of its employees for joining or
assisting any labor organization.
(3) Will not in any manner discriminate against any of its employees
in regard to hire or tenure of employment or any term or condition of
employment for joining or assisting any labor organization.
Dated July -, 1940
NATIONAL .SIEVES COMPANY,
By
Personnel Director.
On July 16, 1940, Wolman closed out the account of the First Association, with-
drawing $71.41. This money was spent on a dance conducted by the First
Association shortly thereafter.
Weissman testified, and the undersigned finds, that the Wolman notice
announcing the meeting of July 15 or July 16 and the respondent's notice of dis-
establishment appeared together on the same board for a few days. -
Between July 15 and July 20, 1940, upon General Manager Gessner's return
from his vacation, he called a conference of executives and told the group, that
the "old Association" had been disestablished and that a "new Association" had
been formed. Credit Manager Greenberg testified that in addition Gessner
instructed the executives that if they saw any notices on the respondent's bulle-
tin boards, other than company notices, to remove them, and that they were not
to discuss unions or associations with the,employees.14
2. The Second Association
Shortly after the meeting of July 15 or July 16, 1940, at which the employees
voted in favor of an Association, another meeting was held at which an executive
or negotiating committee was chosen and empowered to draft a constitution.
The executive committee was also directed to retain an attorney, Hyman
Shendelman, a brother of one of the employees.
On August 25, 1940, a meeting was held at which the constitution was adopted,
Shendelman was introduced to the membership, and the following officers
elected :
President, Saul Fallick.
Vice President,- Sara Smith.
Secretary, Sydney Friend.
Treasurer, Sylvia Wiener."
14 A similar conference was held and similar instructions given early in July, 1941.
u Friend had been the last secretary of the First Association , Wiener, its last treasurer,
and Smith, a member of its last negotiating committee.
NATIONAL SILVER COMPANY ' .
.
579,
Wolman was nominated for the presidency at this meeting, but failed to win
the election: Arstark was another unsuccessful, candidate for president at this,
election.
Weissman, who had been elected a member of the negotiating committee at
the prior meeting, reported on his conferences with the respondent. A contract
was later signed with the Second Association on September 27, 1940. -
On April 8, 1941, a meeting of the Second Association was held. The minutes
recite: "Sol [Saul Fallick?] brought up the question as to whether Nat Arstark
could attend meetings without paying dues. Eddie Wolman said he felt much
the same way, but because of his position he didn't know whether he is or
should be a member, although his interest still lies with the Association. It
was decided to investigate both these cases." 16 Wolman had been promoted in
January 1941 to assist General Manager Gessner in personnel work, a position
which the respondent admitted was a supervisory one. -As such assistant he
could recommend the hiring and discharge of employees. Arstark was also a
supervisory employee at this time.
Wolman denied that he had been present at the meeting of April 8, 1941,
claiming that he attended no meetings after he became a supervisory employee.
He offered an "explanation" that the minutes merely reported a conversation
with him and not his physical presence and stated he had made the remarks
attributed to him in a' private conversation with Arstark. Arstark, a witness
called by the respondent, denied, however, any such conversation and in addi-
tion Weissman 17 testified that Wolman was present at the April 8 meeting.
The undersigned rejects Wolman's denials and finds that he attended the meet-
ing of April 8, 1941, and there made the remarks attributed to him.
In June 1941 the Association through its executive committee began to nego-
tiate a new contract. The committee asked among other things for a 5-day
week and a 20 percent wage increase,' but the respondent offered an increase
of only $1 a week to those earning less than $20 weekly and $2 increase to
those earning between $20 and $30 weekly. The committee, of which Weissman
was a member, rejected the counterproposal and a third conference was sched-
uled for, June 28, 1941, to receive the respondent's final proposal. 'On June 27,
however, the respondent received the following telegram from the Union :
June, 26, 1941
A MAJORITY OF YOUR EMPLOYEES HAVE SELECTED OUR UNION AS ITS BARGAINING
AGENT AND WE HAVE TODAY PETITIONED THE NATIONAL RELATION BOARD (Sic)
FOB CERTIFICATION . A COMMITTEE OF YOUR EMPLOYEES TOGETHER WITH REPRE-
SENTATIVE OF THE UNION WILL BE IN TO SEE YOU AT YOUR PLACE OF BUSINESS
FRIDAY, JUNE 27, AT TWELVE NOON TO DISCUSS THIS MATTER.
General Manager Gessner at once called in the executive committee of the
Association and the telegram was read to them. Weissman told Gessner that
the "contents of the telegram" were true and that in addition a majority of the
executive committee now belonged to the Union.19 ,The committee then left.
That day the respondent met with the Union's negotiating committee on which
were several members of the executive committee of the Second Association.
Further conferences with the Union were held on July 1, July 2, and July 8, 1941,
ie The record does not disclose whether such an investigation was ever made.
14 The undersigned found Weissman to be a reliable, trustworthy witness, precise in his
statements, clear-cut in his recollections, and frank in his demeanor.
19 No general wage increase had been provided by the 1937, 1938, or 1939 contracts.
11 Four of the six members of the executive committee were then on the Union's organiz-
ing or negotiating committee. The oveiwhelming majority of the Union membership had
been recruited in June 1941.
6
580 DECISIONS OF NATIONAL "LABOR RELATIONS BOARD
which are hereinafter described. 'On June 28, the negotiating committee of the
Second Association failed to attend the scheduled conference.
3 The Third Association
Shortly after the telegram of June 26 , 1941, was read to the executive com-
mittee of the Second Association , several of its more active members asked
Fallick to call a meeting of the Association . Fallick , who was then on the
Union ' s , negotiating committee , refused, but nevertheless a meeting of employees
was arranged a and held on Tuesday , July 1 , 1941. At the meeting` Samuel
Sacks, an , assistant - department head , asked Fallick to turn over the books of
the Association , but the latter refused. Sacks then called for the appointment
of a committee to confer with the respondent to obtain its answers to the demands
submitted in June by the executive committee of the Second Association A com-
mittee was appointed , herein called , the Sacks committee , which met the next day
or the day thereafter at the house of Hilda Renner, one of its members. Ac-
cording to Renner, she typed an original and several carbon copies of a petition
at home and distributed them among the committee members to obtain signa-
tures. One form of this petition , -which is dated July 2, 1941, reads :
We the undersigned , herewith authorize the following people : Florence
Brown, Hilda Renner, Sam Sacks , Bert Coleman , Jack Stelling , Jerry Abrams,
Warren Whelan , to act as our representatives in negotiating with the em-
ployers of the National Silver Company to ascertain definite answers to
recent demands presented . It is further understood that all outcomes
of this meeting will be presented to a-general meeting of the National Silver
Employees Assn.
EMPLOYEES OF NATIONAL SILVER CO.
On July 3, 1941, Gessner, who had met with the Union's representatives on
July, 1 and July 2, called the employees together during working hours and read
a three-page prepared statement to them, which the respondent's counsel had
approved. This was the first such meeting ever called by-the respondent.
, Gessner began by stating that the purpose of the meeting was to advise the
employees of the occurrences of the last two weeks and to clarify the respond-
ent's position. After stating that he had received information of "intimidation
and threats"- and that some employees had been informed that they might lose
their jobs "unless they joined one group or another for the purpose of selecting
a bargaining committee," he advised them that no employee would suffer discrim-
ination by reason of his choice of a bargaining agency. ' Gessner than stated that
they would have the opportunity-of making their choice by a secret ballot under
supervision of a federal governmental agency.
20 Weissman testified that a notice announcing this meeting was placed on the respond-
ent's bulletin board and-that the bulletin board simultaneously carried an announcement
by Fallick that the scheduled meeting was not a meeting of the Association. Under the
constitution of the Second Association, only the president could call a meeting Berkowitz
and employee Joseph George Moldan likewise testified that they saw such a notice 'posted.
On the other hand several executives of the respondent alleged they saw no notices posted
after June 11, 1940 Some of these witnesses testified, however, that they took no par-
ticular notice of the boards, or glanced at them rarely, or did not see the board in the
shipping room on the second floor. The testimony of Weissman, Berkowitz, and Moldan
is credited.
23 Richard Frasce_lla, admitted by the respondent to be a supervisory employee, attended
this meeting
2' It is by no means clear that this petition was actually planned or typed before Gessner's
speech of July 3. Sacks, the'moving spirit in its preparation testified • "I don't remember
whether this date [July 21 was put on when it was typed or later. I don't remember
whether we typed it on that date."
NATIONAL SILVER COMPANY 581
He then related that the respondent had conducted several collective bargain-'
ing conferences with the "Employees Association, your independent union" and
that' a final, conference at which.the respondent "was ready with a plan which,
in its opinion, would be acceptable to you," had been scheduled for June 28, 1941.
In the meantime, Gessner continued, he had received a telegram "from another
union" claiming to represent the employees, but' bad informed the new union
that "in the absence of conclusive evidence indicating that they actually rep-
resented a majority of our employees, no immediate recognition would be
acknowledged."
Gessner then stated that the conference of June 28 did not take place because
the "bargaining committee selected by your independent union failed to keep
its appointment and so the proposals which were prepared by the company were
never submitted to you." He concluded by stating that in view of the conflict
between the, two groups "our decision is to await the result of an election to
determine which group is in the majority so that we may proceed with nego-
tiations with a duly elected committee."
Shortly after Gessner's address of July 3, P. J. Bernstein assembled the 7 or 8
employees-in the export department and spoke to them, according to the testi-
mony of employee Benjamin Shendelman which is credited. P. J. Bernstein asked
them why they should not have a "nice big happy family," and told them that
they did not need to go to "any outside source to do our bargaining," but that
they could "get together,in a much better way with the firm itself." He also
remarked that Jews do not join unions:
In July 1941, the employees were solicited to sign the petition of July 2. There
is testimony which the undersigned credits that such solicitation was carried
on during working hours and came to the respondent's attention.
Employee Daniel Steinmetz testified that Sacks asked him in the receiving
room to sign the petition during Sacks' lunch period but while Steinmetz was at
work. Weissman testified that he saw Hilda Renner and Florence Brown in
the shipping room talking to employee Samuel Rosengarten who "was signing
some piece of paper"; that when he asked the girls what they were doing, he
received the reply that they were getting employees "to sign for a meeting."
According to Weissman, he complained to Wolman about this activity on "com-
pany time," but Wolman refused to do anything about it ; he thereupon re-
peated his complaint to Harry Greenberg, who 'stated he would have Wolman
stop them. Kantor, head of the shipping room, and Arstark were present in
the shipping room during the incideilt within 20 feet of the girls, according to
Weissman. Weissman also testified that about a week after July 24, 1941, Jerry
Abrams, another assistant department head, showed him the second petition
and asked him to sign. This allegedly took place in the order room before five
o'clock. Weissman testified that he protested, whereupon Abrams gave the
petition to Muriel Greenberg, who sat alongside of him and the latter signed
the petition. One of,the sheets of the petition in evidence shows the signature
of Muriel Greenberg just above that'of Jerry Abrams.
Renner admitted soliciting signatures on one petition, but denied that it had
been done on company time or company property. Brown denied that she had
visited the shipping department to solicit signatures and Greenberg denied any
conversation with Weissman, but Weissman's testimony was corroborated at
least in part by Wolman. Wolman testified that Weissman told him that "people
were going around with a petition of some sort" ; when Wolman asked where
this was happening and who was doing it, Weissman allegedly stated,: "Oh,
everybody all over the place." According to Wolman, he visited the various
536105-44-vol. 50-38
'582 DECISIONS OF NATIONAL LABORS RELATIONS BOARD
departments and did not see "anybody doing anything of that sort" and so forgot
about it., The undersigned credits Weissman's testimony as to the incident"
\ Sacks denied obtaining any signatures on company time, but the undersigned
rejects his denial and credits the testimony of Steinmetz.'
Abrams who was in the armed services at the time'of the hearing did not testify.
The undersigned credits Weissman's testimony that Abrams solicited him on com-
pany time and property.
Shortly before July 12, 1941, the Sacks committee called on Max Ehrlich, an
attorney. Sacks testified that in the course of a conversation with one of the
respondent's customers, he mentioned the employees' difficulties, whereupon the
customer recommended Ehrlich, who had represented him in labor cases. Sacks
and the rest of the committee then called on Ehrlich and retained him. The com-
mittee told, Ehrlich it had no money, but that the Second Association had about
$400 in its treasury which was "tied up." Ehrlich and the committee arranged
z3 Renner was an evasive, unreliable witness. She testified, for example, that she had
not seen any notices on the bulletin board since September 1939, although even the re-
spondent's executives admitted seeing such leaflets at least until June, 1940. An,indica-
tion of Wolman's attitude of indifference to Weissman's complaint is his testimony that,
after hearing Weissman, "I proceeded, not to run, but I walked around to different depart.
ments." Wolman was then asked :' " I
Q. (By Mr. Brill) Did he [Weissman] ever indicate-
A. He never indicated anything-
Q. Will, you wait until I get through with the question?
Throughout his testimony Wolman's answers indicated he was not a trustworthy witness,
as the following excerpts indicate :
Q. (By Mr. Davis) How did you give notice of your meetings to your employees?
A. I don't remember, it might have been by word of mouth.
Q. You did post a notice on the time clock, did you not?
A. It might have been posted on the time clock.
Q. You posted them over your signature as president or your typewritten signature?
A. It possible, yes sir. (sic)
Q. Did you have the notices printed or mimeographed?
A. No, I used to write them out.
s s w • s r
Q. (By Mr. Davis) Didn't you continue as a member of the Fallick Association?
A. I never did. Absolutely not.
Q. Absolutely not?
A. Yes, sir.
Q May I have the minutes?
A. For the period, up until January 1941, I might have attended meetings, but up
to that time I did not-
s s • •` s • w
A. . . . I continued to attend meetings. I paid dues.
Actually as has been found, Wolman even ran for office in the Second or Fallick
Association. .
ra Sacks was an evasive witness as the following excerpt from the testimony indicates :
Q. (By Mr. Davis) Was Mr. Ehrlich paid for his services?
f i * t i • a
A. He was paid by employees, not by the committee.
Q. What do you mean by employees? -
A. The employees voted him the money.
Q. Where?
A. At a meeting.
Q. Of what?
A. Employees.
Q. You mean it meeting of the National Silver Employees Association?
A. The meeting in February.
« • r w r • a
Q. Where did the monies come from that were voted at the February 5, 1942 meeting?
A. I believe it was voted to take it from the treasury of the National Silver Em-
ployees Association.
i
NATIONAL SILVER COMPANY 583,
for the mimeographing of a leaflet , which was paid for by Sam Kalmus, Wolman's
successor as head of the adjustment department . The leaflet which was dis-
tributed to the employees as they left work assailed "outside interference" and
announced a meeting for,July 24, 1941.
Ehrlich called the respondent and a meeting was arranged for July 18. The
Sacks committee met with Gessner , Greenberg , and Bernard Bernstein ' on that
day and tried to pick up the negotiations where Fallick and the executive com-
mittee of the Second Association had dropped them. It exhibited the petition
of July 2, 1941, which had been signed by 75 employees ( excluding duplications),
constituting a majority of the respondent 's employees . Gessner and Greenberg
counted the names on the petition and made n sample, check of about a dozen
signatures. The committee then asked the respondent what answer it had in-
tended to make to the previous demands of the Second Association. The respond-
ent now offered a wage increase of $2'50 a week or, 10 percent, whichever was
greater. -
• A meeting of the employees was held on July 24, 1941, at which time Sacks
announced the respondent 's wage-hour proposals. A vote was taken on the ac-
ceptance of the respondent's offer and 58 affirmative votes were cast (eight
blank ballots were counted and 43 persons did not vote). This was less than a
majority in the appropriate unit hereinafter found.
The Sacks committee met with the respondent a day or so after the meeting
of July 24 and accepted the respondent 's proposals . Gessner then requested Ehr-
lick to prepare a contract and also requested proof that the committee was au-
thorized to accept the proposals. A new petition was thereupon prepared which
read :
We authorize the following committee Sam Sacks , Hilda Renner , Florence
Brown, Jerry Abrams, Warren Whelan, Jack Stelling , who received the final
proposals from the employers, and accepted by the employees, to sign a con-
tract in our behalf with said employer, National Silver Company.
On July 30 ,1941, the Sacks committee met with the respondent. The second
petition was submitted for examination and the contract prepared by Ehrlich was
executed between the respondent and Sam Sacks, Hilda Renner, Florence Brown,
Jerry Abrams, Warren Whelan, and Jack Stelling, described in the contract as
"a committee duly designated by a majority of the employees." The contract
provided for a 10 percent wage increase or a weekly increase of $2.50, whichever
was higher, automatic renewal unless written notice of termination was received
prior to June 1, 1942, and recognized the committee as the "sole bargaining agency"
for a designated list of fourteen crafts, comprising practically all the employees
in the New York plant, except salesmen and executives. The wage increase
was retroactive to July 26, 1941.
On August 25, 1941, another leaflet was\mimeographed and mailed to,the em-
ployees announcing a meeting "of the members of the National Silver Co. Employ-
r^ This meeting was likewise announced by a notice posted on the bulletin board, the
notice itself being introduced in evidence upon Weissman 's Identification . Hilda Renner
testified that the notice in evidence looked "vaguely familiar " and that its test had been
discussed at Ehrlich 's office where it was rejected in favor of the mimeographed leaflet.
She denied that the notice was ever posted . The undersigned - credits Weissman 's Identifica-
tion, particularly in view of the failure of Renner , to show how the notice could have come
into Weissman 's possession if it had not been posted. ,
28 The contract also provided for the adjustment of grievances , but Sacks testified that
there were no grievances during the entire life of the contract . On the other band, accord-
ing to Gessner , during the term of the contract with the Second Association he had met
monthly with its grievance committee.
I
584 DECISIONS OF NATIONAL LAiBOR'RELATIONS BOARD
ees" to be held on September 3, and signed "Committee Representing The Majority
of Employees ." m The leaflet stated in part :
This meeting is of the utmost importance to you,'and is taking place for the
purpose of finding out what happened to our constitution, our By-Laws, and
our Money.
On September 3, 1941 , however , the Union "packed" the meeting , according to
Sacks, and no effort was made'to conduct a meeting.
No further meetings of the employees were held thereafter until February 5,
1942. The Third Association had no constitution , no bylaws, no officers , no pro-
vision for meetings , no provision for dues or membership , and carried on no ac-
tivities after September ' 3, 1941.
Fallick resigned ' his position as president of the Second Association in October
or November , 1941. On February 5, 1942, a meeting of the employees was held,
at which Sara Smith, vice ' president of the Second Association , presided. On
February 13, 1942, Smith and Florence Brown signed a form and submitted it to
the bank in which the funds of the Second Association had been deposited , provid-
ing for withdrawals of such funds upon their joint signature . The form stated in
part:
This is to certify that at'a regular meeting of the National Silver Employees
Assoc. held February 5, 1942, a quorum being present , the following resolution
was unanimously adopted .. .
Brown had been listed as one of the required co-signers with the title of secretary-
treasurer in a previous resolution dated January 29 , 1941. On the form dated
February 13, 1942 , she was likewise designated as secretary -treasurer , while Smith'
was designated as president.
The account of the Second 'Association had been opened on November 13, 1940.
On June 20, 1941 , its balance stood at $397 .49. No further deposits or with-
drawals were made until February 2, 1942, when $10 was withdrawn. The
financial records of the Second Association show a payment of $10 for "Room
Rent" on February 5, 1942, and the payment , of a fee to Ehrlich of $250 in in-
stallments from February 16 to March 24, 1942.
4. The Fourth Association
It is contended by the intervenor, that the Fourth Association came into
existence at a meeting of the respondent's employees held on April 14, 1942,
at which time a constitution was adopted and officers 'were elected. The finan-
cial records of the Second Association and the Fourth Association show, how-
ever, no break in the continued existence of the Second Association.' Even the
money for hiring the meeting hall of April,14, 1942, and for the refreshments
served there, amounting to $39, came from the funds of the Second Association.
The bank account of the Second Association continued to be the account of the
Fourth Association, the Fourth Association not even troubling to revoke the
authority given to the officers of the Second Association to withdraw funds.
Part of the professional fees of Hyman Shendelman, attorney for the Second
Association, amounting to $25, was paid by the Fourth Association on April
29, 1942. A loan of $12 made to employee Gordon in March 1941 by the Second
Association was repaid by him to the Fourth Association in July 1942. Even
the notebook in which Brown, the 'treasurer of the Second Association, made
27
Neither Brown, Renner , Stelling nor Sacks could explain who mailed out the leaflet.
The Sacks committee did not have the employees ' address. The 'intervenor offered no
explanation of how such addresses were obtained or who paid for the mailing.
NATIONAL SILVER COMPANY 585
her entries in 1940 and 1941 was used by her as the financial record book of
the Fourth Association , entries for both Associations appearing on one page.
The minutes of the Fourth Association for April 14, 1942, themselves . demon-
strate that it was not - the first meeting of a new association , but rather the
continuation of a former one. Thus the minutes recite that the meeting was
opened with the reading of the "minutes of the previous meeting." 28 Under a
heading "Old Business" the minutes describe the work of a previously appointed
constitutional committee.
At another meeting of the Association held on May,12, 1942, its president
announced that "numerous people have asked about what has happened to the
money we made on our dance held March 1941." Brown then gave a report
in detail about the dance.
The respondent 's contract with the Sacks committee provided for automatic
renewal unless a written notice of termination was sent by either party. Al-
though no such notice was sent, the respondent proceeded in June 1942 to
negotiate a contract with the Fourth Association" and signed a contract with,
it on June 15, 1942.30
5. Concluding findings
That the First Association was formed and existed under the sponsorship
of the respondent is hardly open to question. Its first meeting was held on
company property and was addressed by one of respondent's executives. There-
after the respondent allowed its bulletin boards to be used by the Association,
and Association dues were collected during working hours by a supervisory
employee, thus publicly announcing its continued sponsorship and support.
Finally, when the treasurer of the Association needed money for an Association
dance, she was able to borrow it from an officer of the respondent.
If the Second Association is the successor to the First Association, found to
be sponsored, assisted, and dominated by the respondent, the Second Association
likewise comes within the prohibitions of the Act. The "central factor" is
the state of mind of the employees ' The first Association had for three years
existed under the sponsorship and domination of the respondent As the courts
have held, "experience teaches us that such a long continued influence does not
suddenly evaporate." a2 The posting by the respondent of its notice of dises-
tablishment on July 9, 1940, did not serve to "wipe the slate clean," n for the
acts of the respondent and the First Association carried on while the notice
remained posted counteracted the notice. The respondent thus indicated to its
employees that only surface reforms were necessary, which would eliminate
the more obvious symptoms of employer domination while allowing the "virus
of control" 34 to remain unchecked.
That Wolman, the founder and president of the First Association, was intent
only on such surface reforms is manifest by his remarks at the meeting of
23 This meeting was evidently the meeting of February 5, 1942, the minutes of which,
were not in existence at the time of the hearing.
23 Gessner was asked at the hearing whether in his negotiations with the Fourth Associa-
tion, he was under the impression that it was the same as the Third Association or a.dif-
ferent organization. He replied : "I had no impressions regarding what it was."
31 The undersigned does not find it necessary to resolve the conflicts in testimony as to
whether or not dues for the Fourth Association were collected on the respondent's property
in the presence of supervisors or whether notices announcing meetings of the Fourth
Association were posted on the respondent's bulletin board. -
31 Sperry Gyroscope Co. v. N. L. R B, 129 F. (2d) 992 (C. C. A. 2).
33 1W. _
33 N. L R. B. v. Link-Belt Co., 311 U. S. 584.
S4 N. L. R. B. v. H . E. Fletcher Co., 108 F. ( 2d) 459 ( C. C. A. 1).
,586 DECISIONS OF NAT'ION'IAL-LABOR RELATIONS BOARD
June 11, 1940, that a majority of the members of the First Association could
form 'a new one "guarding against the ills which declared this one illegal."
That the Second Association is thus merely a reorganization of or successor to
the First Association seems clear ; After Wolman announced at the meeting
in July 1940 that the Association must disband , it at once began to reorganize,
the very vote in favor of an "inside " association being taken at the July 15 or
16 meeting of the First Association . Wolman himself by a' notice on the re-
spondent 's bulletin board had announced this meeting and he presided at it,
until replaced by Fallick . It was this notice which appeared on the bulletin
board simultaneously with the respondent 's notice of disestablishment, thus
notifying its employees that it was lending , its support to Wolman ' s proposals
for a reorganization.
Wolman, himself , was a candidate for election at the first regular meeting
of the Second Association , while three of its four officers had held important,
or corresponding positions in the First Association , the "group at the helm" $
of the First Association thus taking over the control of the Second Association
Wolman even continued his membership in and interest in the Second Associa-
tion until April 1941, although he had become a supervisory employee in Jan-
nary 1941. -
Whether the Third and Fourth Associations , together with the Second As-
sociation , comprise one organization or three separate ones, one growing out of
the other in an unbroken line of succession, is for practical purposes an unim-
portant question.
The Sacks committee, or the Third Association , may be deemed nothing more
than the effort of a faction to retain control of the Second Association , or a suc-
cessor to the Second Association . Thus the expenses of the Third Association
were borne by the Second Association and the officers of the Third Association
even insisted that the books , constitution , and monies of the Second Association
were "our constitution , our bylaws , and our money ." The very petition upon'
the basis of which the Third , Association was recognized as the bargaining repre-
sentative of the employees merely authorized it to receive the respondent's
answers to demands previously submitted by the Second Association , answers
which it had to report " to a general meeting of the National Silver, Employees
Ass'n."
The Third Association itself received the illegal support of the respondent
and particularly of P. J. Bernstein . Its petitions were circulated on company
time and property and notices of its early meetings were allowed to be posted
on the respondent 's bulletin boards. - r
The most potent form of support , however , which the Third Association re-
ceived from the respondent was that it began to negotiate with the Association
as the representative of its employees before it had been designated as such by,a
majority of them. On July 18 on the occasion of the first meeting with the
respondent , the Sacks committee was authorized merely to receive the respondent's
proposals . On July 24, when these proposals were adopted , only 58 persons, less
than a majority in the appropriate unit, had accepted the respondent 's offer. The
respondent , nevertheless , continued its negotiations and even directed the drafting
of a contract . The second petition which authorized the signing of a contract
was prepared and circulated after the parties had completed their negotiations
and had reached an 'agreement as to the matters to be incorporated in a
contract.
Obviously an employer gives overwhelming assistance to a labor organization
by negotiating with it and promising it a 10 percent wage increase before it has
85 N. L. if. B. v. Condenser Corp., 128 F. (2d) 67 (C. C. A. 3).
NATIONAL SILVER COMPANY 587
been designated by a majority of its employees . Once the promise of a contract
is dangled before the eyes of its employees , they will be quick to authorize the
execution of such a contract , regardless of their prior designation of a union
which has not only received no, support but in fact has incurred the open, hos-
tility of their employer . The precipitate execution of the contract with its
retroactive wage increase in the face of the conflicting claims of the Union was
the final step in the respondent 's campaign to revivify the Second Association and
to undermine the Union , 36 a campaign which began with Gessner 's speech of July 3.
That the Fourth Association is merely the Second Association with a new con-
stitution and a new set of officers is also clear . Most convincing evidence of this
line of succession is the financial records of the Second Association.
The undersigned accordingly finds that the First , Second, Third , and Fourth
Associations are each labor organizations , the Fourth - being the successor
to the Third , the Third to the Second, and the Second to the First. The under-
signed further finds that the respondent dominated and interfered with the
administration of and contributed support to each of the four Associations, \
and thereby interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
B. Interference , restraint, and coercion
On July 1, 1941, P. J. Bernstein asked Fallick whether as president of the
Association he would give Bernstein permission to speak at a meeting of the
employees . Fallick refused and told Bernstein that he was a member of the
Union . A general conversation on racketeering in unions then began , follow-
ing which Bernstein told Fallick that the respondent 's salesmen earned as high as
$20,000 a year and offered Fallick a "selling job." Fallick refused.97
Weissman testified , and the undersigned finds, that during July or August
1941 P. J. Bernstein met him on the main floor of the respondent 's showroom,
and told him : "Jews have no right to join unions ... you only make it bad for
all the other Jews." Bernstein then stated he had breakfast with a Congress-
man that day who told him Jews were making it very bad for themselves by
joining unions . Bernstein also said that the Union "was full of communists."
The conversation ended with Bernstein 's remark that he would play pinochle
with Weissman in a concentration camp.
In the middle of July 1941 P. J. Bernstein visited the export department and
spoke,to the employees there, according to Benjamin Shendelman 's testimony
which is credited P. J. Bernstein charged that the Union was "communistic"
and a "bunch of reds " and offered to buy the employees some books "against com
munists", written by someone whose name was "Jean Valjean" or "something
like that ," a man who was "kicked out of his country." 36
Shendelman testified that on another occasion in July or August 1941 P. J.
Bernstein visited the export department accompanied by Bernard Ellerstein, a
department manager, at which time Ellerstein remarked , to Shendelman, that
the C. I. O. were communists and that the A. F. of L. was "much better to
deal,with."
"See N. L. R . B. v. Johns Engelhorn & Sons, decided March 1, 1943 , 134 F ( 2d) 553
(C. C. A 3).
31 Faliick, although called as a witness by the Board , was extremely reluctant to give'any
testimony unfavorable to the respondent in general or P J. Bernstein in particular. Fallick
was active in the Union from May to September 1941, when he ceased his union activities.
In July 1942 he became a salesman for the respondent . P J. Bernstein left for Florida on
the respondent 's business around January 1, 1943, and was there on January 14. He did
not testify at the hearing , which lasted until February 4. The respondent made no further
explanation of Its failure to call him as a witness.
38 Shendelman probably was referring to "Out of the Night" by Jan Valtin.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shendelman likewise testified that on another occasion in July or August
1941 P. J. Bernstein tried out a home recording device in the export department
within the hearing of the employees . In the course of his remarks into ,the
machine, he stated : "Well, boys, lets go into a new business . . . where we can
make a lot of money . . . we can start a union like Mr. Hillman . . . or Mr.
Dubinsky ... we can collect dues every week and we can become millionaires . .
Bernstein was accompanied by Ellerstein on this occasion . ' The next day Bern-
stein allegedly returned to the export department and repeated his performance,
making similar remarks.
Ellerstein denied making the remarks attributed to him by Shendelman and,
while admitting P. J. Bernstein had tested the recording device in the export
department, denied that Bernstein had made anti-union statements while doing so.
Bernard Smith, another executive, testified that be accompanied P. J Bernstein
on both occasions and likewise denied that P. J. Bernstein had uttered
any anti-union remarks. The undersigned credits Shendelman's testimony and
rejects Ellerstein 's and Smith 's denials .°
Employee use Eisinger testified that on August ", 1941, the day she received
a wage increase as a result of the Association contract, Wolman told her that
she was better off belonging to the Association rather than the Union, because if
she had belonged to the Union she would not have received anything. Eisinger
joined the Union in June 1941 and-testified that thereafter "always" wore her
Union button on her dress. Wolman denied any such conversation, but the
undersigned rejects his denial and credits Eisinger 's testimony.
Ida Berkowitz testified that at the June 30 or July 1, 1941, meeting called by
Sacks she and Betty Phillips almost got into a "fist flight" over the Union. Wolman
shortly thereafter directed her not to leave the third floor. She was employed
in the assembling department and in the course of her duties was required to go
to the second floor for merchandise and to Richard Frascella's office for customer's
orders. Wolman told her that another employee would get the merchandise she
needed and that she should telephone Frascella if she had occasion to talk with
him. Berkowitz did not follow Wolman's instructions and about a week later
Lou Kantor, head of the shipping department, likewise directed her not to visit
the second floor. Berkowitz obeyed Kantor for about 3 or 4 weeks and then
stopped following his instructions, without any further action on the part of
Wolman or Kantor. Wolman did not mention this incident in his testimony and
Kantor did not testify.40 The undersigned credits Berkowitz's testimony.
Weissman testified that in August 1941, Greenberg told him to get by telephone
the information he was previously obtaining by visits to the various departments.
Weissman had been engaged since May 1941 as a follow-up clerk investigating
customers' complaints on late deliveries. For a week or so Weissman allegedly
-followed the instructions, doing little work, at the end of which period Greenberg
told him his job was being abolished and put him to work compiling a list of
wholesale grocers from Dun & Bradstreet. It took Weissman, who had never
88 Shendelman impressed the undersigned as an honest, guileless witness. P . J Bernstein
did not testify and the phonograph records were not available. Smith made the following
remark while testifying about P. J. Bernstein , which, although said half in jest, is still
significant : "Ile is my boss, so I have got to be careful ." Shendelman likewise testified
that Bernard Bernstein in July 1941 called him down to the latter's office and charged him
with tr } ing to "browbeat" employees to join the Union. Bernard Bernstein testified, how-
ever, that he had received a complaint from employee Joe Silver that , Sbendelman had
-"playfully" put a knife to his back and told him "that's what happened to employees who
disobey, the Union" ; that Bernstein had thereupon told Shendelman that although he did
not dispute that Shendelman had been acting "in fun," to stop annoying other employees.
The undersigned credits Bernard Bernstein ' s testimony.
a° Ile was in a hospital at the time of the hearing.
NATIONAL SILVER COMPANY 589
before been engaged in such work for the respondent , about 5 weeks to compile
the list. The grocers were later circularized by the respondent . When the list
was completed , Weissman was sent back to help in the stock department, where
he had formerly worked.
Greenberg denied that he had instructed Weissman to remain in his -office,
using the telephone to obtain information, and alleged that he had given Weissman
the task of compiling the wholesale grocer list because of a back injury which'
Weissman had sustained and which was troubling Weissman at that time.
The undersigned does not credit Greenberg's testimony, finding it difficult
to believe that the respondent's effort to isolate two of the most active Union
members, Berkowitz and Weissman, from their fellow employees at the height
of the Union's organizational drive was a mere coincidence. Regardless of the
need by the respondent for the wholesale list, the undersigned finds that the re-
spondent assigned Weissman to the compilation work in order to minimize con-
tracts between him and his fellow employees.
Maurice Lipke testified that he wore a union button in the plant and that in
the summer of 1941 Henry Citron, a department manager, asked him why he_
had joined the Union. According to Lipke, after he had replied, Citron stated
that the respondent "would not be partial to advancing anybody that was a union
member," that he "should stick with the firm for a while and not bother with the
Union," and that "he would see personally what he could do for me as far as
my chances for advancement were concerned." Citron also allegedly said that if
Lipke had any grievances lie should take it to the grievance committee or the
Association, there being no reason to go to an outside organization. Citron also
referred to the Union button and remarked that Lipke looked like a "jackass,"
according to the latter's testimony.
Remarks "along the same line" were allegedly made by Citron "once every eight
or ten days for a period of perhaps two or three months." Citron denied any such
conversations, and the undersigned credits'his testimony.`
The undersigned finds that by the remarks of P J. Bernstein to Wallickon July
1, 1941, to Weissman in July or August 1941, to the employees in the export depart-
ment, and by those made while testing the recording device; by Ellerstein's re-
marks to Shendelman, by Wolman's remarks to Eisinger on August 1, 1941, by the
effort made to isolate Berkowitz and Weissman, and by the acts of the respond-
ent described in Section III A, above, the respondent interfered with, restrained,
and coerced the exercise of the rights guaranteed in Section 7 of the Act.
C. The refusal to bargain collectively with the Union
1. The appropriate unit
The complaint, as amended, alleges that all the "inside" employees of the
respondent employed at its New York plant, exclusive of department heads
(also referred to as buyers), assistants to department heads (also-referred to
as assistant department heads, assistant buyers, or assistants to buyers), sales-
men, executives, supervisory employees, and secretaries to officers or executives,
constitute a unit appropriate for the purposes of collective bargaining. The
respondent alleged that the employees listed in certain job classifications in the
° Lipke also testified that about the same time as his conversations with Citron he had
had two conversations with Richard Umin, another department head, "along the same lines
as Mr. Citron." The undersigned cannot accept such blanket testimony, particularly when
denied by Umin.
590 , 11!ECISI6NS OF'NATION'AL LABOR RELATION'S BOARD
contract of July 30, 1941, constitute an appropriate unit 4' and submitted a roster
containing the names of 143 employees, each of whom was allegedly an employee
within the claimed unit during his period of employment. The unit claimed by
the respondent is in fact the same as that described in the complaint with the
exception of 16 employees, the status of each of which is in dispute and is
discussed below :
1. Hudson Bensuden was employed as a chauffeur. According to Bernard
Bernstein, Bensuden drove a company car used for the entertainment of cus-
tomers, on occasions drove the respondent's officers to and from their homes,
and sometimes chauffeured the wives of executives. Bernstein testified that
60 percent of Bensuden's time was spent in chauffeuring and 40 percent in
other activities, such as acting as a' porter, or assisting the shipping -and
receiving clerks, although the respondent "regarded him as a chauffeur."
Maurice Lipke testified and the undersigned finds that the car Bensuden
drove was a limousine and that he wore a chauffeur's uniform. "On
August 1, 1941, after the signing of the contract with the Third Association,
every employee that the respondent claimed to be within the appropriate unit
received a wage increase except Bensuden (and Herbert Orrie). In addition,
Bensuden's duties do not place him within any of the 14 occupational groups,
listed in that contract, for which the Association was recognized as a bargaining
agent. The only indication that he ever was a member of any of the four asso-
ciations was a record of his attending a meeting of the Fourth Association on
June'10, 1942. Bensuden's duties are so different from those of the remaining
employees that he should be excluded from the unit's
Ruth,Polonsky is described on the roster of employees prepared by the respond-
ent as "Head bookkeeper," her weekly salary on August 1, 1941, being $40.70.
There were about 30 employees in the bookkeeping department, which was
headed by Harry Greenberg, the respondent's credit manager. Weissman testi-
fied, and the undersigned finds, that her desk faced the desks of all the em-
ployees°in the bookkeeping department, that he frequently observed Greenberg
give her work, which she would then assign to the girls, that the girls worked
on various types of bookkeeping machines, which Polonsky did not operate.
Polonsky's salary was higher than that of any of the employees in that depart-
ment, the next highest salary being $31.67. Greenberg testified that Polonsky
had two assistants, but denied that she had any supervisory authority. His
own salary in 1941 was $15,000 a year and in addition to his duties as credit
manager he supervised all of the office and bookkeeping employees. His credit
work, he testified, necessitated his being in his office continually. On his
vacations, according to Greenberg, he "left instructions as to what to
do ... with various individuals" but no one was in charge of the department.
Gessner, the respondent's general manager, according to Greenberg, "took over"
during such vacations. The undersigned found Greenberg to be a witness
lacking in candor 44 and does not credit his testimony that Polonsky exercised
no supervisory functions. It seems inconceivable that a $15,000 a year execu-
tive who admittedly spent 90 percent of his time on accounts receivable would
supervise directly the day-to-day work of the accounting employees Even
more incredible is his testimony that during vacations the respondent's general`
41 The intervenor's answer makes no specific claim as to any unit, although at the hearing
the intervenor took the same position as the respondent on the question of the appropriate
unit
42 Matter of David Kahn. Inc, etc, 31 N 1, R B 578, 581.
44 Greenberg at first flatly denied that Polonsky was the head bookkeeper until con-
fronted with the respondent's roster giving her such a title, whereupon he admitted that
"you might call her a head bookkeeper." '
NATIONAL SILVER COMPANY, 591
'manager would assume such supervisory duties The undersigned finds that
Polonsky is a supervisory employee who should be excluded from the unit ¢5
Fay Hamlin, according to Gessner, was the "secretary" of P. J. Bernstein, the
oldest son of S. E . Bernstein and the vice president of the respondent , taking all
of his mail , keeping his "personal records" such as bills, insurance , stock, and
receiving all of her orders directly from him. According to the respondent, P. J.
Bernstein was the only executive who had his own secretary. Her salary in
August 1941 was $30.25, more than that of any stenographer except that of
Lynn Young. Greenberg, testified that her duties were different from those of
three stenographers whom he named. The undersigned finds that Hamlin was
the private and confidential secretary of P. J. Bernstein and should be excluded
from the unit.'6
Lynn Young, according to the contention of the attorney for the Board, was
secretary to Bernard Smith,'the respondent's assistant sales manager. Accord-
ing to Gessner, she was merely a stenographer 91 Smith testified that Young
shared an office with him and took his dictation on matters referring to sales ;
on other matters he dictated to Hamlin. In addition to taking Smith's dictation,
Young took care of any dictation required by the respondent's salesmen, all 45
of whom were under Smith's supervision. Young also prepared daily and other
periodic statistical sales reports for Smith which he considered as confidential.
Young would also when "help was needed" take the dictation of other executives.
Young was assigned to the sales department where she was under Smith's super-
vision. On, August 1, 1941, she was earning $30.25 a week. The undersigned
finds that Young by reason of her duties and her service as secretary to Smith
should be excluded from the appropriate unit.
Betty Phillips, described on the respondent's roster as a stenographer at a
weekly rate of $29.04 (as of August 1, 1941), worked at a desk on the balcony
of the respondent's plant. Many of the executives had their offices on that bal-
cony. She took dictation from Gessner, Bernard Bernstein, and other executives.
The undersigned finds that she should be included within the unit.
Sara Smith had her desk on the balcony described above "right outside of
S. E. Bernstein's office." She was a pay-roll clerk who made out the weekly
payroll and maintained the employees' social security cards. She also took the
dictation of S. E Bernstein. The undersigned rejects the contention of Board's
counsel that she was S. E Bernstein's secretary and finds that she should be
included within the unit
Hilda Renner worked at a desk outside of the office of Berk, the secretary
of the respondent. She took his dictation in addition to that of other executives.
The undersigned finds that she is a stenographer who is properly within the unit.
Sam Palmus is listed on the respondent's roster of employees as an "adjustment
clerk" with a weekly salary (as of August 1, 1941) of $33 He succeeded Wolman
upon the latter's promotion to become Gessner's assistant. The adjustment clerk
or head of the adjustment department was in charge of the adjustment of
customers' complaints. A file clerk and a packer worked in that department
permanently and usually several order pickers. According to Gessner, Kalmus
' Matter of Western Union Telegraph Co., etc, 38 N . L. R. B. 492, 500.
"Matter of Yale & Towne Mfg. Co., etc, 44 N. L R. B 1259, 1263.
47 Gessner was asked by Board's counsel whether he and Greenberg had secretaries located
near the former 's office and answered : "I have secretaries-when I say secretaries, have
two stenographers that are located-well, one secretary-P. J. Bernstein is located on the
main floor . . . and two stenographers who, do work for me are located , in offices which I
occupy in my various capacities .. " Later he flatly denied that he had a secretary at
any time. The two "stenographers" were later identified as Young and Betty Phillips.
48 The undersigned is not persuaded to the contrary by a letter, of reference on the
respondent's letterhead and over her signature written by Sara Smith for an employee.
592 DECISIONS DF NATIONAL LABOR REUkTIONS BOARD
received all letters which contained customer's inquiries about shipments, would
examine returned merchandise to "see whether it was our fault or the customer's
fault," would investigate complaints of breakages and' shortages to determine
the respondent's liability, and would dictate his reports to a stenographer as-
signed to him Gessner testified that Kalmus had no supervisory duties over
the employees in the adjustment department. It would appear therefore that
the department was supervised by Greenberg, the credit manager. The under-
signed finds that if Kalmus exercised any supervisory duties, they are not
substantial enough to warrant his exclusion from the unit.
Herbert Orrie is listed on the respondent's roster as "L[os] A[ngeles] clerk"'
at a weekly salary of $35. As has been found, he did not receive any increase
on August 1, 1941, although the contract of July 30, 1941, provided an increase
for "all employees ... engaged in the crafts'and groups" set forth 49 According
to Gessner, the head of the Los Angeles department on the Pacific Coast was
Morton Bernstein, a son of S. E. Bernstein, but in New York, Gessner acted as
head. Orrie, he alleged, did the same work for him that the various assistants
to department- heads did for their various superiors 60 Gessner also described
Orrie as merely an "order -picker," i. e, one who collected merchandise from
the various stockrooms for the Los Angeles orders, and also as "head order
clerk" in the L. A. department. Gessner alleged that he distributed the daily
mail relating to the Los Angeles department to "Orrie as well as to other 61
department managers." A stenographer who was also a clerk was assigned
to the department and Orrie would dictate to her. Orrie had a desk "either
before" 1941 or "after that," according to Gessner, and when the respondent moved
the plant in 1942 Gessner shared an office with Orrie. According to Weissman,
on occasions there were as many as two packers and five order pickers in the
Los Angeles department. The undersigned finds that Orrie because of his duties
and his close relationship to the respondent's general manager is a supervisory
employee and should be excluded from the unit.
Nathan Arstark was employed as a checker at a weekly salary (as of August 1,
1941) of $44, the highest salary of any employee on the respondent's roster. His
immediate superior was Lou Kantor, head of the shipping department, who was
in charge of 18 packers, 18 order pickers, 22 stock clerks, and various other
employees, and who earned annually between $7000 and $8000. When Kantor
left the respondent's employ in May 1942, Arstark was promoted and assumed
charge% of the shipping department. According to Gessner, Arstark checked the
merchandise' brought to the packing tables by the order pickers against the
customers' orders to verify the shipping instructions and the quantity of goods
and informed the packers which lots were ready for packing. Shendelman testi-
fied that during the monthly vacation taken each year by Kantor, Arstark "took
over," would sit at Kantor's desk, and would divide his time equally between
assigning customers' orders to the order pickers and stock clerks and his regular
checking job. Breindel also testified that Arstark "carried out some of his
[Kantor's] duties" while Kantor Was away on vacation. Arstark denied that he
had any additional duties during Kantor's vacation, except the assignment of the
customers' orders to various departments, but admitted on cross-examination
that Kantor would tell him before he left for his vacation to watch the department
and "to see that the department runs right." Arstark contended that Greenberg
took Kantor's place during the latter's vacation, but admitted that Greenberg
would only come to the shipping department `occasionally, look around and walk
I
0 Although the respondent, by its answer, claimed that these "groups" constituted the
appropriate unit, nevertheless at the hearing it contended that Orrie should be in the unit.
1OAll the assistants to department heads received a wage increase on August 1, 1941.
61 The use of "other" in this sentence may be merely a grammatical error.
NATIONAL SILVER COMPANY '593
out." The undersigned credits Shendelman's and Breindel's testimony.
Weiss-
man testified that he observed Arstark "bawl out" the packers when they were
talking and give them instructions, including commands to sweep up the floor.
Arstark alleged that he merely pointed out to packers which shipments were
ready to be packed, that he merely "asked" packers not to talk-so loud while he
was concentrating on a checking job, and that he never directed the parcel post
boy to sweep up unless first instructed to do so by Kantor. The undersigned'
credits Weissman's testimony. The undersigned finds that Arstark was a super-
visory employee and should be excluded from the unit.
Martin Loewenthal'is listed on the respondent's roster as an order picker at a
weekly salary,(as of August 1, 1941) of $30.80. The next highest salary of any
of the other 17'order pickers was $24.50, only 4 of whom received over $20 a week.
According to Gessner, Loewenthal's duties were the same as those of the other
order pickers, except that he worked in one department, while the others worked
all over the building. Weissman, who had worked as an order picker,. testified,
however, that Loewenthal would assign customers' orders to pick, would "tell
the others what to do" and "would go around and check up on how they were
working and so on." According to Weissman, order pickers were originally
assigned to various departments, but in 1940 this procedure was changed "so that
all of the order pickers assembled together under Loewenthal as their leader and
..: he would send them where they were needed." Toward the end of 1941,
according to Weissman, Loewenthal had a desk in the shipping department and
kept the customers' orders in a locked cabinet by his side. The undersigned
accepts Weissman's detailed testimony as more credible than-Gessner's blanket
characterization and finds that Loewenthal is a supervisory employee who should
be excluded from the appropriate unit.
Assistants to the department heads. In this category are Jerry Abrams,
Leonard Gordon, Louis Richman, Jesse Rodstein, and Samuel Sacks,i2 a group
which the complaint alleges does not come within the appropriate unit 63 The
assistant department heads acted as clerical assistants for their respective heads
who were also known as buyers, but themselves did not buying or selling. Their
weekly salary (as as August 1, 1941) ranged from $25 to $27.83, whereas the
department heads earned from $7,500 to $12,000 a year. It was the assistants'
duty to keep track, of the stock of the various departments. Each department
consisted of a buyer, or department head, an assistant, one or more packers, one
or more stockmen, and in addition various order pickers working there for short
periods of time. There were roughly about five employees in each department.
The assistant generally shared the office of the department head. The assistant
would issue instructions to the stockmen and packers in their respective depart-
ments, but, according to the respondent, when doing so merely transmitted instruc-
tions from their respective chiefs. The department heads bought the merchandise
of their departments and supervised generally the execution of customers' orders /'
Ellerstein testified that whenever he was out of town, which occurred from four
to six times a year, Abrams, his assistant, "just followed through the routine of
the department." These buying trips each lasted 1 or 2 weeks. Weissman testi-
fied that Richman "made sure that we weren't loafing around." While the under-
signed is convinced that the assistants exercised minor supervisory duties in
"The Board's attorney offered in evidence, however, Union designation cards for Rich-
man'and Gordon in the event that the group should be deemed within the appropriate unit.
Although the record is not quite clear as to his duties, Raymond Maduro, "export clerk,"
who signed a Union designation card, performed roughly the same duties as the various
assistants to department heads
63 The respondent admitted that one assistant, Frascella, in the largest department, who
did assist his department head in buying, was a supervisory employee.
594 f DECISiIONS, OF NATIONAL, LABOR RELATIONS BOARD
relation to the employees in their departments, he finds that such supervisory
duties are not substantial enough to warrant their exclusion from the unit.
The undersigned finds that- all-of the inside employees of the respondent
employed at its New York plant, exclusive of executives, department heads,
'salesmen, supervisory employees, chauffeurs, and secretaries to executives or
department heads, have at all times material herein constituted and do now
constitute a unit appropriate for the purposes of collective bargaining and
further finds that such unit will ensure to employees of the respondent the
full benefit of their rights to self-organization and collective bargaining and
otherwise effectuate the purpose of the Act."
2. Representation of a majority in the appropriate unit
There were received in evidence a total of 88 cards by which the signer applied
for membership in the Union and designated it as his collective bargaining rep-
resentative.' Neither the respondent nor the intervenor disputed the genuine-
ness of the signatures on the cards nor that all such persons were employees
of the company within the unit described above as appropriate. The validity of
some of these designations was,-however, attacked on other grounds discussed
below : - -
a. The alleged revocation of the Union designations
The respondent contended that 20 of the above-described Union designation
cards were invalid because the signers had likewise signed the petitions of
July 2, 1941, and of July 30, 1941. Nothing in the text of these petitions, how-
ever, indicates that the signer was withdrawing or revoking his designation
of the Union,60 many of the group of 20 having signed•the cards or paid initia-
tion fees to the Union after signing the first or second petitions." In any event
the designation of a company-dominated labor organization cannot be deemed
to have been made "with the full freedom of choice which the Act requires""
nor to serve as 'a revocation of a prior designation of a legitimate labor organi-
zation, since it is well settled that revocations of union designations after or
during the commission of unfair labor practices by an employer are immaterial.60
b. The dates'as of which the union cards were signed
Each of the 88 cards received in evidence originally contained blanks above
the text of the designation and the employee's signatures for information as
.to his address, salary, department, etc. One of these blanks was entitled
"date" and refers to the date of designation. In addition most of the cards
have cash register impressions on their backs showing the dates on which
initiation fees were paid to the Union. The respondent and the intervenor
contended at the hearing that the signature on 24 of these cards were in a
handwriting different from that of the entry entitled "date" and that con-
s4 The following employees are accordingly excluded from the unit : Hamlin, Young,
Arstark, Loewenthal , Bensuden , Orrie, and Polonsky.
35 The Trial Examiner hereby receives in evidence the cards of E. Feinman, M. Kafka,
P. Katz, W. Whelan , and W. Zacharius , as to which his ruling was reserved during the
hearing. The card of Marion Grooper is not herein considered as an effective designation
because she signed her card on June 27, 1941, and left the respondent 's employ on the
same day
"See N . L R B. v. Somerset Shoe Co, 111 F. (2d) 681 (C. C. A. 1)
" The first petition was signed during the period from July 2 to July 18, 1941 the
second , apparently between July 26 and July 30, 1941.
"N. L R. B. v. New Era Die Co , 118 F. ( 2d) 500 (C. C. A. 3).
59 N. L. R . B. v. Bradford Dyeing Ass 'n., 310 U S. 318.
60 Oughton v. N. L. R. B., 118 F. ( 2d) 494 (C. C A. 3 ), cert. denied , 315 U. S. 797, and
cases there cited ; International Association of Machinists v. N. L. R: B., 311 U. S. 72.
NATIONAL SILVER COMPANY i 595
sequently such cards 'should only be deemed valid as of the date of the pay-
ment of the 'initiation fee. No evidence was offered, however, in support of
"such contention.
As to most of these 24 cards, the date, on which initiation fees were paid
follows so closely after the disputed date of designation that the contention is
deprived of real significance. Thus the disputed date for B. Friedman;
Levine, Rosenkranz, and Scilluffo is either June 26 or June 21, 1941; the
cash register stamp on the reverse of these cards is, respectively, June' 27,
June 27, June 27, and June 23. The date on eight other cards in this group
was identified as in her handwriting by Ethel Kappy, a division secretary
of the Union, who testified that it was her task to check the designation cards
on their receipt by the Union According to Kappy, if the card contained
no date when she received it, she would either ask the signer when he signed
it and insert the correct date or else fill in the date when she received the
card; these were her instructions and this was the practice of the Union.
The undersigned credits her testimony.
Only four cards in- this group lacked either a cash register stamp or were
not identified by Kappy. The undersigned finds, after an examination of the
above cards that the dates on these four cards are in the handwriting of the
signer.' These were the cards of Brooks, Goldspinner, Scheer, and Sommer.
c. Miscellaneous attacks on the Union cards
The respondent and the intervenor in addition questioned the validity of
several cards on the grounds discussed below :
Isidore Towbis signed his card on May 26, 1941, at a time when he had not
c eyet been hired by the respondent, the blank entitled "Employer" containing
the entry "Revlon." He began to work for the respondent, however, on June
17, 1941, and paid part of his initiation fee to the Union on June 30, 1941, while
in the respondent's employ. Towbis will therefore be deemed to have desig-
nated the Union as his agent to bargain collectively with the respondent
as of June 30, 194182
Frank Campana signed a Union card on June 12, 1941, and was in that month
appointed to serve on the Union's bargaining committee. The back of his
card shows a payment on June 27, 1941, of $3 towards his initiation fee. Some-
time after July 8, 1941, he agreed to serve as a shop steward of the Union. At
the hearing Campana testified, as a witness for the intervenor, that a day or
so before June 27, 1941, the date of the first scheduled conference between the
Union bargaining committee and the respondent, he had told Weissman, a fellow
committee member, that "I would not go in to see the bosses." 63 The undersigned
finds that Campana did not inform any Union representative that he wished to
leave the Union and accordingly finds that his designation of the Union was not
revoked or withdrawn.
°6A ^ total of 59 out of the 88 cards received in evidence were signed in June 1941,
according to the designation dates.
62 Payment of initiation fees to a union is a sufficient designation of it as a collective
bargaining agent Lebanon Steel Foundry v. N. L R. B., 130 F (2d) 404 (App. D. C ).
m Campana phrased this remark in two ways, while still testifying on direct examination,
as follows : "`I would not go in to see the bosses" and "I would not represent the Union."
Thereafter in response to the following question from the respondent 's counsel: "When
you say you changed your mind about being a member of the union, did you tell him you
changed your mind about going in or did you tell him you changed your mind about being
a member of the Union"" Campana answered , "Changed both ways." Later in his ex-
amination Campana testified that he had not told Weissman that he had wished to leave
the Union at the time , but merely that " I wasn 't going in "
I
596 DECISIONS 'OF NAT'IONAIL LABOR REII.ATIONS BOARD
James Jordan signed a Union card on February 8, 1940, and paid 25 cents
initiation fee at the time. Called as a witness by the intervenor, he testified
that he had been asked by Weissman at least 20 times in a 2 or 3 week period
to sign the card and that Weissman "kept on pestering and pestering me, and in
order to get rid of him I signed it." He explained further that he had signed
the card given him by Weissman with no one near him and had himself filled
out all the entries. On cross-examination, Jordan admitted that in December
1941 he had visited the Union headquarters. When shown that the back of his
card bore a cash register stamp indicating a payment on August 19, 1941, of 50,
cents towards his initiation fee, Jordan answered, "I think I did pay." The
undersigned finds that Jordan's card was not signed under duress and is conse-
quently valid 64
Warren Whelan signed a Union card on February 21, 1939, and,paid part of
his initiation fee on June 27 and July 3, 1941. Sometime after July 8, 1941,
he was elected an assistant shop steward for the Union. He likewise signed
both the July 2 and the July 30 petitions of the Association and was listed on
some of such petitions as one of the committee of six or seven members desig-
nated by the signers. Jay Tabb, the Union's organizer, testified that in a
conversation with Whelan between August 5 and 10, 1941, he had reproached
Whelan for the latter's activities on behalf of the Third Association and that'
Whelan had thereupon requested the return of his Union card Tabb returned
the card to him The undersigned finds that Whelan's designation of the
Union was valid, but only until August 5, 1942.86
Jack Stelling signed a Union card on July 12, -1941. He testified that a com-
mittee called upon him at his home and that one of the group stated that
they would not leave the house until he signed the, card He added that "after
a couple of hours of arguing" his wife and mother-in-law "prevailed upon mef,
to just get rid of them, sign the card." His wife likewise signed a card as of
that date. Stelling, however, took the trouble to fill in all of the entries on his
card and listed the exact date when he was hired. Stelling thereafter acted
as one of the committee for the Tihrd Association designated by the petition of
July 2 and July 30, 1941. On September 5, 1941, his wife [Sally Richman]
paid $4 initiation fee on her designation and $4 on her husband's. Stelling
testified that he had not learned of this payment until a few days before the
hearing. The undersigned cannot accept the contention of the respondent and
intervenor that the insistence of the Union committee was tantamount to duress
that robbed Stelling's act of any voluntary quality. Stelling did not even testify
that he asked the committee to leave his home. If Stelling was subjected to
undue "pressure," 88 then so was his wife, yet About 2 months afterwards she
voluntarily paid the Union $8 in initiation fees. That Stelling was not informed
of this payment which represented about 1/6 of the couple's joint weekly salary
of $47.60 is difficult to believe. The undersigned accordingly finds that Stelling's
card was not signed under duress and was a valid designation."
" The definition of duress in the Restatement of the Law of Contracts is: "Any wrongful
act of one person that compels a manifestation of apparent assent by another to a
transaction without his volition "
Matter of Dadourian Export Corp ., etc., 46 N . L. R B 498
08 Matter of Ellis-Klatscher d Co , etc , 40 N L R B 1037, 1044 1
6 The testimony of Campana , Jordan, and Stelling illustrates the wisdom of'the Board's
policy of questioning the probative value of testimony concerning preferences in union
affiliations or designed to rebut signed union designations when given by employees in the
presence of their employer and at its request. See Matter of Manvsile Jenckes Corp ., etc.,
30 N. L it. B. 382 , and cases therein cited. -
I
NATIONAL SILVER COMPANY
F
597
d. Concluding findings
The following table lists, for the weeks ending on the days indicated, the total
number of employees on the respondent's roster, the total number within the
appropriate unit, the total necessary for a bare majority, and the total number
of valid union designations :
Week endmg-
Total on
roster
Total within
appropriate
unit
Majority
Total valid
cards 69
June 27, 1941 ----------------------------------------
141 134 68 69
July 3------------------------------------------------ 141
134 68 73
July 11--------------------------------------------
143 136 69 72
July 18----------------------------------------------- 142
135 68 76
July 25----------------------------------------------- 143 136 69 78
August-l--------------------------------------------- 141 134 68 77
August 8----------------------------------------- 140
133 67 76
15-------------------------------------------- 139
132 67 76
August 22----------------------------------------- 140 133 67 78
August 29------------------------------------------- 136 129 65 76
It thus appears that the Union was designated as the collective bargaining rep-
resentative of a majority of employees as of June 27, 1941, and thereafter re-
mained such majority representative.°B
The undersigned accordingly finds that on June 27, 1941, a majority of employees
in the appropriate unit above described designated the Union as their representa-
tive for the purpose of collective bargaining with the respondent, and therefore
pursuant to Section 9 (a) of the Act, the Union has been since June 27, 1941,
and is now, the exclusive representative of all of the employees in said appro-,
priate unit for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
3. The negotiations with the Union
a. The June 27th conference
On June 26, 1941, Jay Tabb, a divisional director of the Union, sent the re-
spondent the telegram. already described and on Friday, June 27, called on the
respondent, accompanied by a union organizer and the Union's organizing com-
mittee consisting of Fallick, Weissman, Berkowitz, Silverman , and Breindel.40
They were met by Gessner, Greenberg, Bernard Bernstein, and Abraham Brill,
the respondent's general counsel.. Tabb stated that the Union represented a
majority of employees, and asked the respondent to bargain with it. Brill in-
quired what evidence there was that the Union represented a majority. When Tabb
replied that the Union had designation cards, Brill asked to see them. Tabb de-
E9 In computing the total of valid cards no card was considered after the date the employee had left the
respondent's employment, there being a total of 11 employees who quit in the above period. In view of the
Union's majority, the undersigned does not pass upon the question whether a designation should be con
sidered as valid despite a severance of employment , when such severance occurred after the respondent's
Illegal refusal to bargain An employee who signed on a particular date ending the week was not deemed to
have designated the Union until the followine day.
°* The Union in fact received the designations of a majority of employees even in the
unit claimed as appropriate by the respondent from on and after July 3, 1941.
"All but Silverman had been on the executive and negotiating committee of the Second
Association which had been questioned about the telegram that same morning
71 This is the first time Brill had been invited by the respondent to participate in the
opening of negotiations with a labor organization . His role in the preceding years had
merely been to approve the contract as to form and to attend the conference during which
is was signed . Asked why Bull was invited , Greenbeig ieplied that it was an "extraor-
dinary " matter. Yet the respondent had four times in the past received representatives of
the employees and checked their claims to act as such without Brill 's participation.
536105-44-vol 50-39
598 DECIS1ONIS OF ]NATIIONIAL LABOR RELATIONS BOARD
dined to show them to,the respondent , stating that the employees feared dis-
crimination . According to Tabb, he suggested an election , and when Brill ob-
jected that it would take too long, Tabb then offered to submit the cards to an
impartial outsider or to a governmental agency such as the Board, whereupon
Brill stated that he would discuss the matter with his clients and would advise
Tabb which method of checking the cards the respondent would agree to. The
respondent 's witnesses testified , however , that Tabb in addition offered to show
the cards to Brill at the latter 's office but not in the presence of the respondent's
management , which offer Brill accepted , whereupon the parties agreed to arrange
a conference early the next week , at which the cards could be produced for veri-
fication. 2
That same day Tabb filed a petition Abith the Regional Office of the Board
for investigation and certification of representatives pursuant to Section 9 (c)
of the Act in which he claimed as appropriate the following unit : "All inside em-
ployees in the 23rd Street plant with the exception of buyers , assistant buyers,
salesmen , executives and supervisory employees ." The Union asserted a
majority in that unit
On June 28 Wallace Miller, the Board's Field Examiner , wrote to the respondent
advising it of the filing of the petition and of the claimed unit , and requesting the
respondent to attend a "joint conference" 'on Wednesday, July 2, 1941. Brill was
advised of this letter and instructed his client not to reply . No reply was ever
sent."
b. The July 1st conference
On Tuesday, July 1, 1941, Tabb and David Livingston, the Union's vice president,
met Brill at his office. There is sharp conflict as to the events at this conference.
According to Livingston's version, the conference began with a discussion between
Tabb and Brill as to the method to be adopted to check the Union's majority.
Livingston interrupted and stated that the real problem depended upon the ability
of the Union and the respondent "to get along together." After stating that the
respondent had been resisting its employees' efforts to organize since 1939, Living-
ston suggested that "what was needed was to sit down and figure out just how a
peaceful agreement could be reached Once that problem was solved, the question
of the method of proof of majority became an academic one, relatively easy to
solve" either by submission of the cards to Brill "or through a consent election
at the Labor Board" or through other methods. Brill thereupon stated he favored
peaceful agreements and referred to a closed-shop contract he had just con-
cluded with an A. F. of L. union on behalf of other clients' Brill stated, however,
that there would be certain problems in working, out a closed-shop contract with
the respondent, because of the paternalistic attitude, of Samuel E. Bernstein and
that it would be difficult "to get- themanagement to compel those employees who
were not members of the Union" to join Livingston thereupon remarked- that
although the Union represented a majority of all the employees, exclusive of
salesmen and supervisors, its membership was overwhelmingly among the ware-
house employees, its membership among the office employees being "relatively
slim," and therefore 'suggested that "perhaps the unit should be restricted to the
warehouse" which would eliminate the problems of compulsion in a closed shop.
Brill allegedly stated it was a sensible idea, but that he wished to discuss the
1 72 It is not necessary to resolve this conflict in the testimony for, in any event, Tabb
testified that the next conference, that of July 1, 1941, the Union offered to submit the
cards to Brill.
73 As Gessner reported in his speech of July 3, the respondent was prepared on Saturday,
June 28, to continue its negotiations with the Second Association, despite the Union's claim
of majority status on June 27. Gessner was therefore ready to negotiate with the Second
Association before he had even checked the Union's cards.
NATIONAL SILVER COMPANY 599
,matter with his clients \A further conference was then arranged for July 2.
During the conversation, Livingston continued, he referred to similar experiences
with a firm known as S. Blechman & Sons, Inc.,44 where a 7-year fight against the
Union had eventuated in a contract and a peaceful and satisfactory relationship.46
According to Brill's version of the conference, it opened with his request of
Tabb for the cards Tabb answered that Livingston "would talk." Livingston
referred to Brill's "fine labor record," whereupon Brill mentioned a closed-shop
contract he had just finished negotiating Brill then asked for the cards and
Livingston replied. "I have another thought. First I want,to establish a friendly
relationship . . . all other matters are easily arranged " When Brill asked what
he was "driving at," Livingston replied : "We have a decided majority in the ware-
house group" but "I don't, think we have quite a majority in the over=all unit"
and "in order to make sure that there is no difficulty as to the question of majority,
it would perhaps be best . . . that we change the unit and confine the unit to the
warehouse group where we have an unquestionable and absolute majority . . .
and in that way it will become possible . . . to negotiate with us and enter into
one of our contracts " Brill allegedly replied that he did not think his client
would be interested, whereupon Livingston stated he would "like to present his
ideas" to Samuel E. Bernstein, the respondent's president. Brill stated he had
no objection and a conference was arranged for the next day.7e
c. The July 2nd conference
On July 2. 1941. Tabb and Livingston met Brill, Gessner, and Bernard Bern-
stein at Brill's office. Again there is sharp conflict as to what took place. Ac-
cording to Livingston's account, Brill told his client that Livingston "had some-
thing to say to the management" and "suggested that I tell my story." Living-,
stoii repeated the remarks he had made on July 1 about "a peaceful relationship-
with the Union" and his experiences with the Blechmans and then suggested
"that the sensible thing to do' was to work out an agreement." A discussion
arose about the closed. shop in which Bernard Bernstein referred to "the sense
of obligation that the management felt towards older employees who they as-
sume would not want to -join the Union." Livingston repeated his suggestion
"that if it were possible to work out an agreement, the Union would waive its
right to including the office employees in the unit and consummate an agreement
just for the warehouse." Bernard Bernstein and Brill agreed this was a sensible
approach, but the former stated that he "didn't want to buy a pig in a poke" and
inquired what the terms cf such an agreement would be. Livingston replied that
he would not "enter into such discussions without specific authorization," where-
upon Brill suggested that he get such authorization, which Livingston agreed to do.
A fourth conference was then arranged for July 8.
According to Brill's account, he opened the conference by repeating Living-
ston's remarks of the previous day. Livingston then likewise repeated his re-
marks about the importance of a friendly relationship, described the advantages
to an employer in dealing with a nationally organized union rather than an
"inside" one, referred to the Blechmans, and again asked the respondent to limit
the unit to the warehouse group. When Bernard Bernstein stated that he did not
think that the respondent "would be agreeable to changing the bargaining unit"
and though the cards should be produced for a check, Livingston remarked that
"if it came to the question of counting noses" or cards, the Union would have to
carry on the organizational drive which might result in unpleasantness and
74 See Matter of Blechman & Sons, Inc., etc ., 4 N. L. R. B. 15, 20 N. L. R. B. 495.
46 Livingston's account of this and the later conferences as corroborated by Tabb
70 Brill's account of this and the later conferences was corroborated by Gessner and
Bernard Bernstein.
600- DECISIONS OF NATIONAL LABOR REILATIONS BOARD
strife. The conference broke up with a request from Livingston that he be
permitted to express his ideas to Samuel E Bernstein or some of the older
executives and a conference was arranged for July 8
On July 3, as , has been found , Gessner assembled the employees and read a
prepared statement to them in which he advised the employees that they would
have their opportunity of making a choice of a collective bargaining represent-
ative by a closed ballot under the supervision of a governmental agency "created
by the Federal Government for such purposes ." He also informed them that
in view of the conflicting claims of the Second Association and the Union "our
decision is to await the result of an election to determine which group is in the
majority."
d. The July 8th conference
On July 8, 1941 , the same persons who had attended the July 2 conference
met again at Brill 's office ; in addition P. J. Bernstein was present . Again there is
conflict as to the events at the conference
According to Livingston 's testimony , he informed the respondent ' s represent-
atives that he had been authorized to discuss the terms of a contract and pro-
ceeded to do so. The discussion began with a reference to the closed shop which
Livingston stated was part of the Union's normal contract . When Bernard
Bernstein objected to forcing employees to join the Union, Livingston again re-
ferred to his suggestion that the contract be limited to warehouse employees.
P. J. Bernstein then remarked that in no circumstances would he sign a closed-
shop contract . Whereupon Brill remarked : "Well, let's go on, see how much
progress we can make , and probably we can handle that point later on " Living-
ston then asked for a $4 weekly increase for the employees When the respond-
ent offered $2, Livingston pointed out that that offer had been made to the Sec-
ond Association and had been rejected by them. Brill then asked what the Union
would take and Livingston replied : "$3 00 now and a $1 in 6 months ," which
the respondent agreed to think over . The Union 's representative asked for
paid sick leave which management refused, claiming that it lent itself to abuse.
The last main provision discussed was arbitration of discharges as to which
Bernard Bernstein expressed reluctance , but which Brill agreed was the best
method of handling disputes . The conference ended with the remark of Bernard
Bernstein and Brill that "in their opinion an agreement could be worked out"
but that'they wished to discuss the matter with their associates . Brill was sup-
posed to communicate with the Union to arrange a further conference.
According to Brill's account, the conference opened by Livingston repeating
to P. J. Bernstein all that he had told management on July 2. Livingston then
volunteered to give P. J. Berntsein "a general idea of what kind of a contract
we usually make" and proceeded to describe the clauses of a contract , includ-
ing vacations , discharges , wage increases , the "half a dozen or so of the perti-
nent terms that go into a union' contract ." Brill denied that any of the respond-
ent's representatives made any "response" to any of Livingston 's remarks about
the contract or that there was "any discussion as to the terms of a contract." The
conference ended with the remark of P. J. Bernstein that if they wished any
thing further from Livingston, Brill would act as an intermediary.
i
e. The events after July 8, 1941
On the evening of July 8, the Union members employed by the respondent
held a meeting. The minutes of the meeting describe a report given by Tabb
at his conference with the respondent that day as follows :
There was a discussion pertaining to the bargaining unit, wages, hours and
the hiring power. The firm's reaction to the latter was that they wanted an
NATIONAL 'SILVER COMPANY 601
open shop. The firmed [ firm?] promised to notify the Union upon its decision
which groups they wanted to participate in the election after confering (sic)
with Mr. Morton Berstein who was expected Thursday , July 10.
On July 9, Livingston had a telephone conversation with Brill. According to
the former , Brill stated that the respondent wanted an election "covering the
entire plant ," whereupon Livingston replied that the respondent "didn't want'
to make peace and was pursuing its old course of resisting the Union " and in-
formed Brill that the respondent was even then "circulating a petition for a re-
newed company union" and "carrying on all kinds of anti-union practices ." Brill
denied any knowledge of any anti -union activities or that his request for, an
election was a "declaration of war." Livingston then stated that "when we won
the election we would be compelled to ask for a union-shop provision covering
the entire unit" and asked Brill to arrange a further conference . Brill replied
that "he would let me know."
Brill 's account of this conversation differs only slightly from that of Living-
ston's. Brill testified that he informed Livingston that the respondent insisted
that the unit "remain as is," that he was still waiting for the cards to be sub-
mittdd for a cheek, and denied Livingston 's accusation that the respondent wanted
"to continue the fight" ; when Livingston asked Brill to "arrange to have him
see Samuel E. Bernstein ," the latter replied that he would try to arrange a
conference
On July 11, Livingston again talked to Brill on the telephone. Livingston testi-
fied that he asked whether Brill had been able to arrange a conference and was
told he had not been. When he again charged the respondent. with "doing every-
thing possible to undermine the union in the shop ," Brill denied it . Brill finally
stated that he would speak with Livingston over the week -end. According to
Brill 's account , he told Livingston that Samuel E. Bernstein did not wish to
"participate in any union matters" and that he "had reached an age by which
the others in the company and he felt that he should not be annoyed with these
matters at all." Samuel EL Bernstein was then seventy odd years old. '
At least four other telephone conversations were held shortly thereafter be-
tween Brill and Livingston . According to Livingston 's account , on July 15, Brill
told him that he could not arrange any further conferences , but that he would
be present at the Regional Office of the Board for a conference , which was
scheduled for July 16 . On July 17, Livingston reproached Brill for not being
present with his client at the Board ' s office on the preceding day, whereupon
Brill explained that "he had a difficult client to deal with" and that he.would
try to have his client' attend the next conference at the Board's offices , which was
scheduled for July 22 . On July 22 , Livingson again telephoned Brill and again
reproached him for not attending the scheduled conference whereupon Brill
stated : "I 'll see what I can do. The best thing you can do is let things ride."
Brill in his testimony did not separate the various telephone conversations
after July 8. He testified that Livingston continually harped on the question
of getting S. E. Bernstein to meet him or getting the respondent to agree to
change the unit, whereas he "in most of these conversations " asked Livingston
to submit the Union 's cards for verificatin . He stated, however, that he was
informed by the respondent "somewhere around the middle of July or a little
beyond the middle of July" of the submission of the petition of July 247 and
thereafter "I quite naturally didn't ask him anything about cards any more
because I then knew definitely in my own mind that he didn 't represent a
majority ." Brill also testified that in his last telephone conversation with
Livingston ( which the latter fixed as on July 22 ) he told the union officer that
77 The petition was submitted on July 18, 1941.
602 , IYECISiIONS OF NATIONAL LABOR RELATIONS BOARD
the Union did not,represent a majority of the respondent 's employees and that
the respondent was then negotiating "with a group" that did
There were no further conferences after July 22.
During the period of these conferences and telephone conversations, the
Board 's Regional Office was acting on the petition filed by the Union. As has
,been found , the first "joint conference" was scheduled for July 2, which the
,respondent did not attend . On July 14, the Regional Office sent a telegram to
the respondent asking it to attend a conference on July 16 . On July 15, Gessner
sent a telegram in reply with Brill 's approval , which read :
IN REPLY TO YOUR TELEGRAM OF JULY 14TH, PLEASE BE ADVISED THAT ON MAY
TWENTY FIRST NINETEEN FORTY ONE A MAJORITY OF OUR EMPLOYEES NOTIFIED
US THAT THEY HAVE ' DESIGNATED A BARGAINING AGENCY. WE COMMENCED NEGO-
TIATIONS WITH SAID AGENCY, WE HAVE ALWAYS BEEN AND ARE READY TO CON-
TINUE THE' NEGOTIATIONS WITH THE BARGAINING AGENCY REPRESENTING THE
MAJORITY OF OUR EMPLOYEES . WE HAVE NOT BEEN NOTIFIED BY A MAJORITY OF
OUR WORKERS THAT THEY HAVE CHANGED THEIR BARGAINING AGENCY.
The respondent did not attend the July ,16 conference , whereupon the Regional
Office of the Board on July 16 wrote Gessner as follows :
I received your telegram of July 15th this morning, in which you make
no mention of the conference scheduled for today ' at 10 A. M., but advise
that on May 21, 1940 [1941], a majority of your employees designated a
certain bargaining agency. In addition , you inform me that you are ready
to continue the negotiations with the bargaining agency which represents
the majority of your employees.
In this connection I might advise you that a petition was filed here on
June 27, 1941, by Local 65, United Wholesale & Warehouse Employees of
New Yoik , in which it is claimed that a majority of your employees have
designated that Union to act for them as their collective bargaining agency.
Whether or not that Union or any other union represents a majority of
your employees , is a matter for'this Board to determine , and that was the
purpose of the conference called for today which you did not attend.
We are, therefore , scheduling a conference for Tuesday , July 22nd, at
10 A. M., and would request that you be present 'at that time . Mr. Wallace
Miller of this office will handle the conference.
The respondent neither replied to the Board 's letter of July 16 nor attended
the July 22 conference . Instead shortly before Jqly 18, Gessner arranged a
conference with Ehrlich and the Sacks committee for July 18 and on that day
began to bargain collectively with that committee.
On July 16, the Union issued a leaflet 78 which was distributed to respondent's
employees The leaflet states , in part :
Why the change of heart? The Company wanted an election . Why did
it change its mind ? The Company is" not fooling anybody ! They insisted
on an election because they hoped that Local 65 would lose the election.
BUT THERE '"'ILL BE AN ELECTION. WE DEMAND OUR DEMOCRATIC AMERICAN RIGHT,
TO DETERMINE FOR OURSELVES THROUGH THE SECRET BALLOT WHAT UNION IS TO
BE OUR COLLECTIVE BARGAINING AGENCY. WE ARE UNITED AND WE WILL REMAIN
UNITED UNTIL THE ELECTION AND AFTER THE ELECTION.
78 The Trial Examiner hereby receives in evidence this leaflet, ruling on which was re-
served during the hearing. - • -•
I
V
NATIONAL SILVER COMPANY 603
On July 17 another Union leaflet was similarly distributed which read in part:
When the Company thought that we could not win a Labor Board election
they insisted that we have it. Now, that they know that we can win, the
Company is fighting against an election.
LET'S DEMONSTRATE, DEMANDING THAT THE COMPANY PERMIT AN ELECTION !
LET'S BRING THIS GIANT WHOLESALE FIRM INTO 65'S RANKS ! ALL OUT FOR
UNION-WIDE DEMONSTRATION TUESDAY JULY 22ND 12:15 P. M.79
On July 22, Gessner again assembled the employees and read a prepared
statement. He told the employees that the respondent was threatened with a
strike and that it would do everything possible "to provide adequate protec-
tion . . . to and from work" Gessner then stated, referring to the conference,
with the Sacks committee:
As provided by law, a meeting -was held with a committee representing
the majority of our employees. We are negotiating with them with a
view to arriving at a satisfactory, conclusion. No doubt the committee
has advised you, or will advise you, of what transpired at our meeting.
On July 30, 1941, the respondent signed a contract with the Third Association
recognizing it as the exclusive bargaining representative of its employees and
granting a 10 percent wage increase to its employees retroactive to July 26,
1941.' The employees received the increase on August 1, 1941.
On August 27, 1941, the Union wrote the respondent in part as follows:
We therefore wish to advise you in behalf of your employees that because
of your refusal to bargain we are compelled to call a strike. In a last effort
to forestall such a strike, we request a conference with you this week.
The Union sent a copy of the letter to Brill and in a separate covering letter
wrote in part:
In view of the pending strike we trust that you will urge the firm to arrange
a conference with the union and continue your policy of conferring with
unions and their representatives which the workers have designated as their
choice. -
You no doubt are aware that the employees have made extensive prepara-
tions for a strike. Unless the firm changes its policy and agrees to deal
with us, we have no choice but to take action. We are therefore making
this last appeal in an effort to establish cordial relations.
May we ask you for your cooperation?
No reply was received to either letter. The threatened strike was never called.
On August 29, 1941, Gessner for the third time assembled the employees and -
read from a prepared statement. He again referred to the'possibility of a strike
and again promised protection to all employees.
There were no further communications between-the respondent and the Union.
On November 8, 1941, the Union requested and later obtained approval of the
withdrawal of its petition.
f. Concluding findings
Without resolving in detail each conflict in testimony as to the'conferences and
telephone conversations in July 1941. the undersigned finds from the testimony
of the witnesses, the documentary evidence, and the surrounding circumstances
that: '
1. The respondent, in answer to the Union's claim for recognition, requested
proof that the Union represented its employees.
79 Bernard Bernstein testified that a police officer on July 22 , 1941 , showed him the
leaflet. Later he attempted to qualify his answer.
604 DIECISSONS OF NATIONAL LABOR RELATIONS BOARD
k
2. The Union, with the acquiescence of the respondent, postponed the sub-
mission of proof of its majority and discussed instead the necessity of a friendly
relationship
3. On July 9, the respondent reverted to its original position, insisting on
proof of majority, but agreed to a further conference with the Union.
4 Nevertheless on July 11, and July 15, 1941, the respondent refused to grant
the Union such a conference.80 '
5. Thereafter the Union attempted unsuccessfully to induce the respondent
to attend the conferences scheduled by the Board for July 16 and July 22.
6 Although the respondent knew on July 16 that the Board conferences were
being called to determine whether the Union represented its employees, it refused
to attend such conferences.
Regardless of any position taken by the Union in the conferences on July 1,
2, and 8, 1941, the respondent was under a duty to meet with it again after July 8,
to afford the Union an opportunity of changing its position, of making new
offers, or of discussing the mechanics of a consent election. The respondent,
however, precluded all possibilities of agreement with the Union by refusing
outright to meet with it.
The grounds for such refusal after July 18, namely, that the respondent had
begun to negotiate with the Sacks committee, are obviously inadequate. An em-
ployer may not avoid the requirement' of the Act that it bargain collectively with
a labor organization by claiming that it is negotiating with an illegal company-
dominated association, -nor may an employer attack a claim of majority made by
a labor organization with the argument that an illegal company-dominated as-
sociation in fact represents its employees. Actually, as has been found, it was
not until July 30, 1941, that the respondent received any evidence that the Sacks
committee represented a majority of its employees.
Obviously therefore the respondent by refusing even to meet with the Union
after July 9, 1941, was thereby refusing to bargain collectively with it as the
representative of its employees.
A further indication of the respondent's refusal to bargain with the Union
was the respondent's refusal to meet the Union at the Board conferences of
July 16 and July 22. I
Even if the respondent in good faith had disputed the Union's claim of majority,
it was bound to cooperate with it and "to accept, some reasonable method for
ascertaining the truth of the representative's claim." a The fact that the
,Union had offered to submit its designation cards to Brill for verification did not
prevent it from withdrawing its offer and insisting,upon an election by secret
ballot or card check under the auspices of the Board 82 Such an election was the
fairest and most satisfactory way of determining whether the Union represented
the respondent's employees, yet the respondent refused to attend the conferences es
I
80 The undersigned does not credit Brill's testimony that the Union after July 9 insisted
.only on conferring with Samuel E. Bernstein and accepts Livingston' s testimony that the
Union requested conferences with the management of the respondent.
81 N L R B . V. New Era Die Co., 118 F. ( 2d) 500 (C C. A 3).
12 See N. L R. B v Clucago Apparatus Co, 116 F. (2d) 753 (C. C. A. 7) ; N. L. R B. v.
Moltrup Steel Products Co, 121 F (2d) 612 (C C A. 3).
83 The respondent 's witnesses offered various explanations for its refusal to attend the
Board conferences . Thus -Gessner testified that on July 2, 1941, the date of the first
scheduled "joint conference ," he "felt or knew" that the negotiating committee of the
Second Association represented a majority of employees "and as of that time I had no
reason to change my mind as to that" He wired the Regional Office on July 15, 1941,
that the respondent would not attend the recent confeience scheduled for July 16, because
the Second Association had notified him that it represented a majority of the employees.
Finally, Brill testified , with respect to the Board conference scheduled for July 22, 1941,
that by that date, "we had already resolved the question [ of majority ] ourselves."
NATIONAL SILVER COMPANY 605
called by the Board which were being held to determine "whether or not that
Union or any other union represents a majority of your employees." 81
Despite the failure of the Union to, produce its cards, the respondent was
nevertheless obligated to cooperate with the Union in any other reasonable
method proposed to determine the Union's status as a bargaining agent. The
respondent knew that the Union wished an election85 and itself had suggested
an election to its employees in Gessner's speech of July 3, 1941. Yet the respond-
ent steadfastly and repeatedly rejected all invitations to a conference at which
such an election could have been arranged.
Finally even were the respondent to contend that it never declined a con-
ference with the Union, and was under no. duty to attend the Board conferences,
its conduct during the negotiations with the Union establishes that its re-
fusal to bargain with the Union was not motivated by an honest doubt as to
the Union's majority.
The respondent's alleged doubt as to the Union's majority was not bona fide,
but part and parcel of its long-continued effort to resist the genuine self-organiza-
tion of its employees. During the period of its negotiations with the Union, its
agents were attempting to revivify the Second Association and simultaneously,
by promises of promotions , cajolery, efforts to isolate active union members,
threats, and sponsorship of the Sacks committee, to undermine the Union's, ma-
jority. The respondent's "doubt" as to the Union's authority does not relieve
it of its obligation to bargain with the Union, since its doubt was not bona fide but
in reality based upon its unwillingness to deal with "outside representatives." 80
Having failed to cooperate with the Union in determining upon a reasonable
method of checking the Union's authority, its doubt as to the Union's status
being a mere pretext, the respondent acted "at its peril" in refusing to bargain
with the Union, which in fact represented a majority of its employees."'
On July 30, 1941, the respondent signed a contract with the Third Association-
recognizing it as the exclusive bargaining representatives of its employees,
thus making unmistakable its refusal to bargain with the Union as such
representative.88
The undersigned accordingly finds that on July 30, 1941, and at all times
thereafter, the respondent refused to negotiate with or recognize the Union
as the exclusive representative of the employees in the unit found above to
be appropriate and thereby the respondent has refused to bargain collectively
with such Union as such exclusive representative and has thereby interfered
'"Brill who was familiar with all the correspondence with the Regional Office admitted
that neither he nor the respondent had done anything to assist the Board in resolving the
question who represented the respondent 's employees . He further admitted that he knew
that the Board could order an election or arrange a consent election with-the approval of
both parties . Bernard Bernstein also conceded that lie knew on July 17 or July 18 that
the Regional Office had called a conference "to resolve the question of majority."
85 Gessner testified that he knew in July 1941 that the Union wanted an election "from
circulars distributed and thrown all over the sidewalk ." An election had also been men-
tioned at the July confeiences , according to Gessner and Bernstein.
'O N. L. R. B. v. Remington Rand, Inc, 94 F. (2d) 862 , 868 (C. C A 2) ; N. L R. B v.
Federbush Co, 121 F ( 2d) 954, 956 ( C. C. A. 2 ) ; N. L. R. B V. National Seal Corp, 127
F. (2d) 776, 778 (C. C. A. 2).
87 N L R. B v. Piqua Munising Wood Products Co., 109 F. ( 2d) 552, 556 (C. C. A. 6) ;
Art Metals Const. Co. v. N. L. R B , 1j0 F ( 2d) 148, 150 ( C. C. A. 2) ; N. L R. B v. Dahl-
strom Metallic Door Co., 112 F. (2d) 756 , 757 (C. C. A 2)
88 N L R B v. Union Pacific Stages, 99 F. (2d ) 153, 159 ( C. C. A 9 ) ; System Federation
No. 40 v. Virginian Railway, 300 U. S. 515 ; the undersigned does not find it necessary to de-
termine whether or not the respondent had refused to bargain prior thereto , either at the
conferences which ended on July 8, or by refusing to meet the Union prior to July 22, or by
refusing to attend the scheduled Board conferences.
1
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, restrained , and coerced its employees in the exercise of- the rights guar-
anteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations described in Section I above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, it
will 'be' recommended that it cease and desist therefrom and take certain
affirmative action which the undersigned finds necessary to effectuate the policies
of the Act.
It has been found' that the respondent dominated and interfered with the
formation and administration of the First; Second, Third, and Fourth Asso-
ciations. Since only the Fourth Association-is now in existence, it will be rec-
ommended that 'the respondent withdraw all recognition from the Fourth Asso-
ciation as the representative of any of its employees for'the purpose of dealing
witli it concerning "grievances; labor disputes, wages, rates of pay,, hours of
employment, or other conditions of employment and completely disestablish it
as such representative.
Ii 'has been found that on June 15, 1942, the respondent entered into a con-
tract with the Fourth Association recognizing it as the sole collective bargaining
agent of its employees. It will be recommended that the respondent cease and
desist from giving effect to' said contract or to any modification, supplement,
extension, or renewal thereof. Nothing in these recommendations, however, shall
be construed to,require the respondent to vary or abandon its present wage rates
or other substantive features of its relations with the employees themselves.
Since it has been found that the respondent, has refused to bargain with the
Union as the representative of all of its inside employees employed at its New
York plant, exclusive of executives, department heads, salesmen, supervisory
einployees,'chauffeurs, and secretaries to executives or department heads, it will
be recommended that upon request it bargain with the Union as the exclusive
representative of the employees within the, above-described appropriate unit.
, Upon the foregoing findings of fact, and upon the entire record in the case, the
undersigned makes the following :
CONCLUSIONS OF LAW,
1. Wholesale & Warehouse Workers Union, Local 65, C. I. 0., and National
Silver Employees Association, are each labor organizations, within the meaning
of Section 2 (5) of the Act.
2: 'The National, Silver Company Employee's Association, National Silver Em-
ployees' Association, and Employees of National Silver Company were each labor
organizations, within the. meaning of Section 2 (5) of the Act..
- 3. 'By dominating and interfering -with the formation and administration of
The National Silver Company Employees' Association, National Silver Employees'
Association, Employees of National Silver Company, and: National Silver Em-
'ployees Association, and by contributing support to each of the above organiza-
tions, the respondent has engaged -in- and is engaging in unfair labor practices,
within the meaning of Section 8 (2) of'the Act. ' - ,
4. All the inside employees of, the respondent employed at its New York
NATIONAL SILVER COMPANY 607
plant, exclusive of executives, department heads, salesmen, supervisory em-
ployees, chauffeurs, and secretaries to executives or department heads, at all
times material herein constituted and do now constitute,a unit appropriate for
the purposes of collective bargaining, within the meaning of Section 9 (b) of
the Act.
5. Wholesale & Warehouse Workers Union, Local 65, C. I. 0., was on June
27, 1941, and at all times thereafter has been, the exclusive representative of'
all the employees in the above-described appropriate unit for the purposes of
collective bargaining, within the meaning of Section 9 (a) of the Act.
6. By refusing on July 30, 1941. and at all times thereafter to bargain col-
lectively with Wholesale & Warehouse Workers Union, Local 65, C. I. 0., as
the exclusive representative of its employees in the appropriate unit above-
described, the respondent has engaged and is engaging 'in, unfair labor prac-
tices, within the meaning of Section 8 (5) of the Act.
7. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has
engaged in and is engaging in unfair labor, practices, within the meaning of
Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2' (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that National Silver Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Wholesale & Warehouse Work-
ers Union, Local 65, C. I 0., as the exclusive representative of all its inside
employees employed at its New York plant, exclusive of executives, depart-,
ment heads, salesmen, supervisory employees, chauffeurs, and secretaries to
exercutives or department heads;
(b) Dominating or interfering with the administration of National Silver
Employees Association or with the formation or administration of any other
labor organization and from contributing financial or other support to the
above-named labor organization or to any other labor organization ;
(c) Giving effect to the contract with National Silver Employees Associa-
.,ion signed June 15, 1942, or to any modification, supplement, extension, or
renewal thereof ;
(d) In any other manner interfering with, restraining, or coercing its em-
ployees In the exercise of the rights to self-organization, to form, join, and
assist labor organizations, 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 as guaranteed in
Section 7 of the Act. '
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from National Silver Employees Association
as the representative of 'any of its employees for the purpose of dealing with
the respondent concerning grievances, labor disputes, wages, rates of pay,'
hours of employment, and other conditions of employment, and completely -
disestablish National Silver Employees Association as such representative ;
(b) Upon request, bargain collectively with Wholesale & Warehouse Work-
ers Union, Local 65, C. 1 0., as the exclusive representative of all of its
608 D(ECISSONS OF NATIONAL LABOR RELATIONS BOARD
inside employees employed at its New York plant, exclusive of executives,
department heads, salesmen, supervisory employees, chauffeurs, and secretaries
to executives or department heads, in respect to rates of pay, wages, hours of
employment, and other conditions of employment;
(c) Post immediately in conspicuous' places on every floor of its New York
plant, and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to-the employees stating: (1) that the respondent
will not engage in the conduct from which it has been recommended that it
cease and desist in paragraph 1 (a), (b), (c), and (d) of these recommen-
dations, and (2) that the respondent will take the affirmative action set forth
in paragraph 2 (a) and (b) of these recommendations.
(d) Notify the Regional Director for the Second Region in writing within
ten (10) days from the date of receipt of this Intermediate Report what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from
the receipt of this Intermediate Report the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of
the National Labor Relations Board, Series 2-as amended, effective October
28, 1942-any party may within fifteen (15) days from the date of the,entry
of the order' transferring the case to the Board, pursuant to Section 32 of
Article II of said Rules and Regulations, file with the Board, Shoreham
Building, Washington, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any
'other part of the record or proceeding (including rulings upon all motions or
objections) as it relies upon, together with the original and four copies of
a brief in support thereof. As further provided in said Section 33, should any
party desire permission to argue orally, before the Board, request therefor must
be made in writing to the Board within ten (10) days from the date of the
order transferring the case to the Board.
Dated March 24, 1943.
WILL MASLOW,
Trial Eranviner.