New York Merchandise Co., Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1942

41 N.L.R.B. 1078 (N.L.R.B. 1942)

In the Matter of NEW YORK MERCHANDISE COIIPANY, INC. and UNITED
WHOLESALE AND WAREHOUSE EMPLOYEES OF N. Y. LOCAL 65, AFFILI-
ATED WITH THE UNITED RETAIL AND WHOLESALE EMPLOYEES OF
AMERICA, C. I. O.
Case No. C-2055. -Decided June 19,19!0
Jurisdiction : general merchandise manufacturing, jobbing, and wholesaling
industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: expressions of open hostility toward the
union ; vilification of its leaders and abuse of members, by supervisory
employees.
Company-Dominated Union: "inside" organization formed at suggestion of em-
ployer with wide membership among respondent's supervisory staff ; and assisted
and maintained by respondent's contribution to its loan and hospital funds
and by financial support to its social affairs held to be company-dominated
within the meaning of Section 8 (2).
Discrimination: discharge of two employees active in the union, without warning
and for a minor offense held discriminatory ; allegations of discrimination dis-
missed as to (1) two employees as to whom the Trial Examiner found the
evidence did not substantiate such allegations, and no exceptions filed to such
finding; and (2) six employees where evidence showed respondent had reason-
able reason for curtailing operations of department' in which the six employees
worked and where no evidence to show that respondent ignored any estab-
lished policy in failing to transfer the employees to other departments in the
plant or to recall them when business improved.
Remedial Orders: employer ordered to disestablish dominated organization and
cease contributing financial or other support to it; reinstatement and back pay
ordered as to the two employees discriminatorily discharged.
Mr. Christopher W. Hoey, for the Board. "
Scandrett, Tuttle, and Chalaire, by Mr. Walter Chalaire and Mr.
Emanuel L. Turberg, of New York City, for the respondent.
Liebman, Leider, and Witt, by Mr. D. William Leider, of New
York City, for the Union.
Mr. Lee Epstein, of New York City, for the Association.
Mary M. Persinger, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon, charges and amended charges duly filed by United Wholesale
and Warehouse Employees of N. Y. Local 65, affiliated with United
41 N. L. R. B., No. 201.
1078
NEW YORK MERCHANDISE COMPANY, INC. 1079
Retail and Wholesale Employees of America, C. I. 0., herein called
the Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Second Region (New York
City), issued its complaint dated August 14, 1941, against New York
Merchandise Company, Inc., New York City, herein called the re-
spondent, alleging that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the,
meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint, accompanied by notice of hearing,
were duly served upon the respondent, the Union, and New York
Merchandise Company Employees Association, herein called the
Association.
With respect to the unfair labor practices, the complaint, as
amended at the hearing, alleged in substance that the respondent
(1) from on or about July 5, 1935, urged, persuaded, and warned its
employees to refrain from aiding, becoming, or remaining members
of any "outside" labor organization ; threatened its employees with
discharge or other reprisals if they aided any outside labor organiza-
tion, and if they did not become or remain members of the Associa-
tion; from October 1940 urged, persuaded, and warned its employees
to refrain from aiding, becoming, or remaining members of the
[Jnion ; threatened its employees with discharge or other reprisals
if they aided the Union, and vilified the Union and its members;
(2) initiated, formed, and sponsored the Association, and since July
5, 1935, fostered, dominated, controlled, supported, and interfered
with the administration of the Association; (3) on or about March
13, 1941, and at all times thereafter refused to bargain collectively
with the Union, designated on or about March 11, 1941, by a majority
of the employees in an appropriate unit as their representative for
the purposes of collective bargaining; (4) discharged and refused
to reemploy 10 employees 1 because they joined and assisted the Union
or engaged in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection; and (5) by the fore-
going acts and conduct, interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
On September 22, 1941, the respondent filed an amended answer,
denying that it had engaged in unfair labor practices and alleging
affirmative defenses discussed more specifically hereinafter. The
Association filed an answer in which it denied the allegations of the
complaint insofar as they concerned the Association.
1 Theodore Dallow, Sarah Helfer, Ann Horowitz , Louis Horowitz , Irwin Tuchfeld , Esther
Wang, Lawrence May, Jack Nass , Martin Siotkin , and Nat Willner.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held in New York City on vari-
ous dates from September 25 to November 4, 1941, before Martin
Raphael, the Trial Examiner duly designated by the Chief Trial
Examiner. The Board, the respondent, the Union, and the Asso-
ciation were represented by counsel; all participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties.
Prior to the hearing, the Association filed with the Regional Di-
rector, in addition to its answer, a motion to intervene ; and the re-
spondent, on September 12, 1941, served upon the Regional Director
a request for a bill of particulars. These matters were referred to
the Trial Examiner. The Association's motion for leave to intervene
was granted at the hearing, and the respondent's motion for a bill
of particulars was granted in part and denied in part by the Trial
Examiner prior to the hearing. When the, hearing opened, the re-
spondent moved for a reconsideration of its request for a bill of
particulars. The Trial Examiner adhered to his original ruling but
announced that he would allow the respondent, if requested, a reason-
able adjournment at the close of the Board's case to enable it to
prepare its defense. A motion for an adjournment, subsequently
made by the respondent's counsel at the close of the Board' s case,
was granted.
At the beginning of the hearing, counsel for the Board moved to
strike certain affirmative defenses from the respondent's answer.
The motion was granted.2 During the course of the hearing and
before the close of the Board's case, counsel for the Board moved to
amend the complaint. The motion was granted over the respondent's
objection.3 Before the close of the Board's case, counsel for the re-
2 That part of the respondent 's answer was stricken which averred affirmatively that the
charges in this case were filed in bad faith ; that the officers and members of the Union
are members of and affiliated with groups of persons who advocate the overthrow by
force and violence of the government of the United States and -the State of New York ;
that the officers and members of the Union advocate the overthrow of the said govern-
ments, and encourage strikes for such purposes; that the officers and members of the
Union have organized and assisted in the organization and maintenance of the Union for
the purpose of conducting subversive activities ; that recognition of and bargaining with
the Union will result in financial and other assistance to it in the conduct of strikes and
will subvert the United States Government and the government of the State of Nev York
contrary to the public policy and laws and statutes of the United States and of the State
of New Yotk ; and that since January 1941 , the Union has intimidated , restrained, and
coerced the respondent 's employees in the exercise of rights guaranteed in Section 7 of
the Act , by acts and threats of violence against them , their families , and their property,
for the purpose of compelling them to loin the Union and to authorize the Union to act
as'their bargaining representative . Subsequently , the Trial Examiner ruled that evidence
pertaining to the last mentioned defense would be received.
' The amendment alleged that the respondent discharged Lawrence May, Jack Nass, and
Martin Slotkin and refused to reinstate them , because they joined or assisted the Union
or engaged in other concerted activities for the purposes of collective bargaining or other
mutual aid or protection. This amendment , in documentary form , along with the amended
supplemental charge filed on September 24, 1941 , in support thereof, were received in
NEW YORK MERCHANDISE COMPANY, 'INC. 1081
spondent moved to dismiss the complaint as to Nat Willner, because
he had failed to appear and testify. The motion was denied. Be-
fore the conclusion of its case, counsel for the Board moved to dismiss
the complaint as to Nat Willner. Decision on this motion was re-
served. At the conclusion of the Board's case, counsel for the Board
moved to dismiss the complaint insofar as it alleged that the respond-
ent engaged in unfair labor practices within the meaning of Section
8 (5) of the Act. This motion was-granted.
At the conclusion of the hearing, the Association moved to dismiss
that portion of the complaint which alleged that the respondent had
sponsored and dominated the Association within the meaning of Sec-
tion 8 (2) of the Act, and the respondent moved to dismiss the entire
complaint. Decision on these motions was reserved. In his Inter-
mediate Report the Trial Examiner denied the motion of the Asso-
ciation and, as appears more fully hereinafter, granted the respond-
ent's motion in part, and denied it in part. At the conclusion of the
entire case counsel for the Board moved to conform the pleadings
to the proof. The motion was granted without objection.
During the course of the hearing, the Trial Examiner made rulings
on other motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On January 13, 1942, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all the parties. He
found that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1), (2), and (3) and Section '2 (6) and- (7) of the Act, and
recommended that the respondent cease and desist from such unfair
labor practices and take certain affirmative action in order to effectu-
ate the policies of the Act. The Trial Examiner further found that
the respondent had not discriminated with respect to the hire and
tenure of employment of Nat Willner, Lawrence May, Theodore
Dallow, Louis Horowitz, Esther Wang, Ann Horowitz, Irwin Tuch-
feld, and'Sarah Helfer, within the meaning of Section 8 (3), and
recommended that the complaint be dismissed as to these persons.
Thereafter, the Union duly filed with the Board exceptions to the
Intermediate Report, and the respondent filed a memorandum in
opposition to the Union's exceptions.
Pursuant to notice, a hearing for the purpose of oral argument was
held on April 23, 1942, before the Board, at Washington, D. C. The
evidence Counsel for the Board orally moved to amend the complaint in other respects,
made necessary by the written motion , which motion was also granted The respondent
was given additional time-7 days-within which to answer
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent and the Union were represented by counsel and partici-
pated in the hearing. The Board has considered the exceptions and
memorandum filed, respectively, by the Union and the respondent,
and to the extent that the exceptions are inconsistent with the findings
of fact, conclusions of law, and order set forth below, finds them to
be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation engaged in manufac-
turing, jobbing, and wholesaling a wide variety of products, includ-
ing dry goods, general notions, toys, glassware, gloves, wreaths, and
clocks. It maintains sales offices and warehouse facilities in Los
Angeles, California; Dallas, Texas, and New York City. Only the
New York plant of the respondent is involved in this proceeding.
The principal products purchased by the respondent are toys, glass-
ware, gloves, clocks, and general notions. During the calendar year
1940, the respondent imported approximately $2,000,000 worth • of
this merchandise from Japan and China; during the same period of
time it purchased approximately $1,500,000 worth of merchandise
from domestic manufacturers. More than 50 percent of these foreign
and domestic imported articles were shipped to the respondent's
warehouses and sales offices in New York City from points outside
the State of New York. The respondent sells its products to jobbers,
wholesalers, and chain stores throughout the United States; and more
than 50 percent of such products are shipped to States other than
the State of New York.
The respondent employs approximately 325 employees at its place
of business in New York City. It concedes that it is engaged in
commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Wholesale and Warehouse Employees of N. Y. Local 65,
is a labor organization affiliated with United'Retail and Wholesale
Employees which in turn is affiliated with the Congress of Industrial
Organizations. It admits to membership employees of the
respondent.
New York Merchandise Company Employees Association ' is an
unaffiliated labor organization. It admits to membership only
employees of the respondent. ,
NEW YORK MERCHANDISE COMPANY, INC. 1083
III. THE UNFAIR LABOR PRACTICES
A. Formation of the Association
In the spring of 1935, an A. F. of L. union began to organize the
respondent's employees, and distributed organizational literature out
side the employees' entrance to the plant. At about this same time,
a group of employees formed a so-called "Employees Delegates Com-
mittee," herein called the Committee, and presented a memorandum 4
to Philip Maslansky, at that time president of the respondent. He
responded by distributing a mimeographed statement to the
employees, which read:'
The attached memorandum submitted by your Employees Dele-
gates Committee meets with my full hearted approval. When
your organization is formed I will gladly cooperate fully with
the employees and it will be my pleasure to make the New York
Merchandise Company Employees Association an outstanding
organization of its kind.
Yours sincerely,
,(Signed) PHILIP MASLANSKY.
Shortly thereafter, the Committee circulated leaflets among the
employees which stated, in substance, that President Maslansky had
promised the Committee that the 40-hour week would be maintained
despite the expiration of the N. R. A., that some form of paid sick
leave would be provided the employees, that a bonus plan would be
developed, and that a system of vacations with pay would be set up.
Following closely upon this activity by Maslansky and the Com-
mittee, the respondent's officials called a series of meetings of the.
employees in the various departments in the plant. Personnel Man-
ager Tropp was the main speaker at these meetings. To the as-
sembled employees of the "J" department Tropp, according to the
testimony of employee Louis Horowitz, stated :
Mr. Tropp started the meeting and discussed the leaflets which
were given out, referring to them as outside influence, and that
we shouldn't let outside influences-well, sort of influence us
inside. We were all one happy family. And Mr. Tropp went
on to something about forming a baseball team, giving us uni-
forms, and in general let's be loyal; that Mr. Tropp rose from
a very low position in New York Merchandise to his position
of general manager, which he now holds, and along that line.
Because of the youth of most of the boys there, we were all young
people in the place, we were all-it was giving a pep talk,
sort of. We were given a pep talk.
4The memorandum was not offered into evidence.
J084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tropp's speech to the employees of. the shipping department was
in similar vein. In addition, however, he stated to this group that
the "outside organization" required high dues. To the approximately
50 employees of the bookkeeping and traffic departments who had
been called together in the office of Simon Wain, secretary of the
corporation, Tropp stated that efforts were being made to organize
the New York Merchandise Company, that the organization trying
to "get into" the Company was not "just the proper thing" for the
employees; that they could gain nothing from joining that organi-
zation; that its dues were exorbitant; and that he did not understand
why the employees could not have an organization confined to the
respondent company. He promised the men that the respondent
would- provide athletic facilities, and promised all the employees
salary increases and job security. Concerning grievances, Tropp
stated that if any should arise, he would "fix that up." Tropp did
not specifically deny any of the statements attributed to him by Board
witnesses in connection with the formation of the Association in
1935. Our findings in this regard are based upon the uncontroverted
and mutually corroborative testimony of Board's witnesses, which we
credit, as did the Trial Examiner.
Esther Wang, an employee, testified without contradiction that
Louis Hirschhorn, the respondent's advertising manager, also spoke
to the employees, suggesting that they form an "organization consist-
ing of New York Merchandise Company employees." We find, as
did the Trial Examiner, that Hirschhorn made the remarks attributed
to him by Wang.
After being thus admonished- by Tropp and Hirschhorn, the em-
ployees in each department were handed mimeographed ballots. The
choice offered on the ballot was between an inside and an outside
organization. The employees marked and cast their ballots in the'
plant; some of them did so in the presence of Tropp. A majority of
the employees voted for an "inside" organization.
In May 1935, following the election conducted by the respondent,
nominations for officers of the Association were held.° Employees
were instructed that the five persons receiving the highest number
of votes were to be considered the nominees for president of the
Association. All employees were given ballots as they passed the
respondent's time clock. As in the prior election, the employees
marked their ballots in the plant, after which they deposited the
ballots in a box near the time clock. Herman Cohen, "head of stock"?
'The record contains no evidence as to how'or when the name "New York Merchandise
Company Employees Association" came to be adopted The constitution of the Associa-
tion recites that it was "organized May 28, 1935," a date subsequent to the nominations.
NEW YORK MERCHANDISE COMPANY, INC. 1085
in the electrical department, was elected president of the Association
and Louis Gottesfeld, vice president.
The first regular meeting of the Association was held on May 28,
1935. ' President Cohen was unable to attend, and Gottesfeld was
advised of the fact. Gottesfeld testified that before presiding at
the meeting he thought it best to find out "how the firm feels toward
the Association" and asked Maslansky for a message which he might
transmit to the Association. According to Gottesfeld's undenied
testimony which we credit, as did the Trial Examiner, Maslansky told
Gottesfeld -that he would "cooperate" with the Association, but that
he was displeased over a' division within its ranks; that, although
methods for adjusting grievances had been created, they were ig-
nored; and that pamphlets were being distributed by certain em-
ployees advocating things which he described as "unfair." Maslan-
sky's latter remark, according to Gottesfeld, referred to the fact that
employees Sam Ballan, Tessie Cohen, and others, whom Gottesfeld
described as "the A. F. of L. group," had distributed leaflets at about
that time voicing their grievances.
Gottesfeld delivered Maslansky's message to the members of the
Association at the May 28 meeting. According to the minutes of
the meeting, Gottesfeld stated "that he (Maslansky) had made cer-
tain promises and had lived up to them, but that a small group had
already broken their word by issuing leaflets instead of submitting
grievances through the channels provided for by the adopted con-
stitution. He mentioned that as soon as the organization was purged
of these members he would aid in every way possible to make the
Association a force for bettering conditions of the members."
In the spring or early summer of 1935, an attorney named Trause,
who had previously been employed by the respondent as a stock
clerk, was employed to draft a constitution and bylaws for the Asso-
ciation. On June 26, 1935, at an Association meeting; Trause read
a "revised" 6 constitution to the membership. Subsequently a con-
stitution and bylaws were adopted. The constitution and bylaws of
the Association limit new members to. persons employed by the re-
spondent for 6 or more consecutive months. It provides for a Board
of Relations composed of six elected delegates. The functions of
this board are to negotiate with the management with respect to
those questions relating to working conditions, safety, health, wages,
hours, and discrimination, "which are submitted by the members of
the Association and which have not been settled by direct personal
negotiations." The constitution also set up •anr Executive Board com-
posed of six elected delegates and the five officers of the Association.
The record is silent concerning the existence of any constitution prior to the time
the "revised" constitution was presented.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Executive Board is empowered to take action on questions which
have been discussed with the management by the Board of Relations
and which have not been "brought to a satisfactory adjustment" by
such discussions.
From the facts set forth above, it is clear, and we find, that the
Association was formed in direct response to the respondent's sug-
gestion. The open interference and support rendered by Maslansky,
Tropp, Hirschhorn, and other supervisory employees to the Asso-
ciation fully sustain this conclusion. Since the National Labor Re-
lations Act did not become effective until July 5, 1935, the activities
of the respondent prior to that date do not constitute unfair labor
practices within the meaning of the Act. They are important, how-
ever, in evaluating the respondent's subsequent conduct with respect
to the Association.7
B. Interference with and domination of the administration of the
Association, and contribution of support thereto, subsequent to
July 5, 1935
Subsequent to the passage of the Act, the respondent's conduct with
respect to the Association was in no way altered. On the contrary,
the respondent supplemented its initial interference with the forma-
tion of the Association, by dominating and interfering with its ad-
ministration and by giving it financial and other support.
Supervisory employees of the respondent, as well as a number of
employees who are clearly identified with the management, are mem-
bers of the Association. Some of these are : Michael Tatken, assist-
ant secretary of the respondent corporation; Victor Tropp, personnel
manager; George. Werfelman, operating head of the import depart-
ment; Sam Bushman, buyer; and Morris Lipschitz, foreman of the
shipping department. Moreover, several of the respondent's super-
visory officials have from time to time served as officers of the Asso-
ciation, or as members of its Executive Board. They include, in
addition to Herman Cohen mentioned above, David Seidman, head
bookkeeper; Leon Friedman, assistant buyer; Louis Hirschhorn, ad-
vertising manager; and Hyman Hill and Morris Weininger, assistant
foremen.8 -
s N. L R B v Pennsylvania Greyhound Lines, Inc, et al, 303 U. S. 261; N. L. R. B v.
Newport News Shipbuilding and Dry Dock Co , 308 U S 241
8 The following employees are also members of the Association : Jack Brenner, Lawrence
Ginsberg, Eli Hoodkiss, Samuel Mellis, Harry Liner and Stanley Marshall, assistant
foremen ; and Eugene Bodenheimer and Irving Muh, assistant buyers.
The record shows, and the Trial Examiner found, that all the employees mentioned
above, with the exception of certain assistant foremen, and assistant buyers, occupied
such positions that their activities are attributable to the respondent. The respondent
did not except to this finding. We find similarly, and further find that the activities
of assistant foremen and assistant buyers are attributable to the respondent. Inter-
F7
NEW YORK MERCHANDISE COMPANY, INC. 1087
Assistant Foreman Brenner is the financial secretary of the Asso-
ciation. There was uncontradicted testimony which we accept, as
did the Trial Examiner, that Brenner has collected dues regularly
from the employees within the plant during and after working hours,
since the Association was formed in 1935, up to and including the
time of the hearing. Notices of the Association''s general meetings
have been periodically posted on the respondent's bulletin board.
The Association has conducted, since its formation, annual social
functions and dances for its members. Gottesfeld testified without
contradiction, that the Association received about $600 a year in
payment for tickets and boxes for these affairs from officials of the
respondent. This amount constitutes a substantial portion of the
Association's annual income.
The Association has created two funds for the benefit of its mem-
bers-a loan fund and a hospitalization fund. The loan fund is
administered in part by Head Bookkeeper Seidman; on his working
time, he participates with other members of the Association's loan
committee in passing on applications and preparing the documents
required. Moreover, some of the employees who borrow money from
the fund pay it back in installments, which are deducted from the
employees' wages by the respondent. The respondent contributed
one-half-$1,250-of the amount which constitutes the hospitalization
fund. Personnel Manager Tropp is a member of the Association's
hospitalization committee, and with the employee-members thereof,
participates in making the decisions concerning the administration
of the fund.
Since 1935, the Association has presented a number of grievances
to the respondent ; it has not, however, negotiated a basic agreement
covering wages, hours, and working conditions.
Further interference by the respondent in the affairs of the Asso-
ciation is demonstrated by the following facts : Tropp, a member of
the Association, also acted as the representative of management in
discussing with officers of the Association matters affecting its mem-
bers. Supervisory employees were members of the executive com-
mittee of the Association, empowered to take up employee grievances
with management. The respondent was, in effect, sitting on both
sides of the conference table. The influence of the supervisory em-
ployees upon the members of the Association clearly appeared om
January 14, 1941, when Theodore Dallow, an employee, proposed that
the Association attempt to persuade the respondent to formulate a
seniority policy. Supervisory employees Friedman and Hirschhorn
national Ass'n of Machinists , etc. v . N L. R B , 311 U S. 72, affirming 110 P. ( 2d) 29 (App
D C ), enforcing 8 N. L. It . B 621 See also Matter of Central Greyhound Lines, Inc_.
of New Yoi8 and Brotherhood of Railroad Trainmen , et at, 27 N L R B 976.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vigorously opposed Dallow's proposal and referred to him as a
"troublemaker." Dallow's suggestion was rejected. About a week
later, according to Dallow's testimony which we credit, as did the
Trial Examiner, Tropp called Dallow into his office -where he spoke
to Dallow, among other things, about seniority, stating that "you
couldn't take waste and make it into gold; that a man had to have
ability in order to be something." The subserviency of the Asso-
ciation to the respondent's will is clearly shown by Gottesfeld's s
testimony concerning the method by which the Association sought
to, and did, obtain-benefits from the respondent : ". . , the best
achievement that was made was the creating of good will and under-
standing so that the firm is anxious to do things to help us out
without asking, as shown here by granting a week's bonus; nobody
1:new anything about it. It was a voluntary gift." 1Vhat was stated
by Tropp to the Association's members at a meeting on January 29,
1936, is an accurate epitome of the illicit relationship between the
respondent and the Association :
The successful attainment of the purposes of the Employee's
Association is just as much my hope as yours, and that the firm
is likewise desirous of seeing the Employee's Association become
an additional bulwark of strength and an asset to the Company.10
It is apparent from the facts set forth above, and we find, that
the respondent openly urged the formation of the Association at a
time when its employees were showing interest in an outside organiza-
tion; and that thereafter the respondent carefully nurtured- the
growth of the Association and exercised a substantial control over
its internal affairs by virtue of the membership of almost its entire
supervisory staff in that organization. Moreover, by its joint par-
ticipation in the maintenance of the Association's hospitalization
and loan funds, and by the lavish contributions made to social affairs
of the Association, the respondent has contributed a large measure of
financial support to the organization. These activities of the re-
spondent have rendered the Association impotent to represent the
employees in genuine collective bargaining.
We find that the respondent, by the above-described course of con-
duct, dominated and interfered with the administration of the Asso-
ciation, and contributed financial and other support to it, and that
the respondent thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
° Gottesfeld was president of the Association at the time of the hearing.
10 This quotation is taken from the minutes of this meeting of the Association.
NEW YORK MERCHANDISE COMPANY, INC . 1089
C. Interference, restraint, and coercion
In November 1940 the Union began to organize the respondent's
employees. Leaflets were distributed outside the plant at that time
and during January, February, and March 1941. We have found
that the respondent's continued domination of the Association after
the passage of the Act was one form of interference with the em-
ployees' right to self-organization. After the Union appeared, the
respondent also sought to discourage its employees from joining a
union of their own choice, by expressions of open hostility toward
the Union, and by vilification of its leaders.
Martin Slotkin, an employee, obtained a position at the respond-
ent's plant on July 12, 1940, through Foreman Lipschitz, a friend of
Slotkin's mother. Slotkin worked for the respondent for 6 months
and was laid off in January 1941. Through the intervention of Lip-
schitz, however, he was called back to work a short time after he was
laid off. Appreciative of Lipschitz's favor to her son, Mrs. Slotkin
invited Lipschitz to dinner. During the course of this visit, Mrs.
Slotkin asked Lipschitz what he though of her son; Lipschitz replied
that he was a "fine boy" and that he would try to obtain a promotion
for him provided, however, that "he would not join the union."
Lipschitz added that if Slotkin joined the Union he would not make
any efforts in his behalf.
Slotkin attended a meeting of the Union in the early part of Febru-
ary. Sidney Rubenstein, a nephew of Lipschitz, was present at the
meeting. On the following day, Lipschitz asked Slotkin whether
he had attended the meeting, and Slotkin replied that he had, but
that he had not joined the Union. Lipschitz advised Slotkin not to
loin, supplementing this advice with the statement that, "they are a
bunch of hoodlums, they couldn't rule the New York Merchandise
anyway." On the same or another occasion, Lipschitz told Slotkin
that if he joined the Union he should not "walk on the same side of
the street" with Lipschitz. Slotkin further testified that Lipschitz
"always stopped me and asked me if I joined; first asked, `how is
your mother and father,' and then said, `Did you join the Union?'
or asked me who is in the Union . . . He always tried to pump me
for information. ..."
Slotkin joined the Union in February or March 1941. Subsequent
'thereto, Mrs. Slotkin met Lipschitz at the home of a mutual friend.
On this occasion, Lipschitz told Mrs. Slotkin that her son should quit
his job, and threatened that if he did not, he, Lipschitz, would make
Slotkin push trucks in the basement "for the rest of his life," and
that he would "work him to death." He asked Mrs. Slotkin to "take
463892 -42-vol 41--69
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him (Slotkin) out of there." Mrs. Slotkin remonstrated with Lip-
schitz, asserting that her son had done nothing wrong, to which
Lipschitz replied, "He stabbed me with a knife in the back because
he joined the Union." Lipschitz also told Mrs. Slotkin that Tropp
had called him a "son-of-a-bitch" because Slotkin joined the Union
after Lipschitz had recommended him for employment; he further
stated that he had a list of applicants for positions who would give
him a written guarantee that they would not join the Union, adding
that he "don't need no trouble makers." Lipschitz cautioned Mrs.
Slotkin not to relate his remarks to her son because he was a super-
visory employee and was "not allowed to talk."
Nat Willner, a member of the Union, was discharged by the re-
spondent on February 7, 1941. The next morning Lipschitz, in a
conversation with employee Lawrence May, explained that Willner
had been laid off because Hyman Hill, Lipschitz's assistant, had com-
plained to him about Willner. During the conversation Lipschitz
asked May if he belonged to the Union. May replied that he did.
Lipschitz then told May that no matter what happened he would
not be laid off or discharged because he was "a good fellow." May
testified that thereafter, on a number of occasions between the one
just mentioned and March 7 when he was- laid off, Lipschitz told
him to quit the Union, and stated that "they are gangsters; all they
want is your dues, and quit the Union."
During the month of February, Lipschitz spoke to Theodore Dal-
low about the Union on a number of occasions. At the outset of this
series of conversations, Lipschitz endeavored to obtain from Dallow
the names of union members. Later on, Dallow's name appeared on
a union leaflet. Thereafter, Lipschitz asked Dallow what he "wanted
to be" in the New York Merchandise Company, and when Dallow
replied that he wanted "to make money," Lipschitz suggested that
Dallow let him know when he decided to quit the Union, in which
event he, Lipschitz, would attempt to obtain a promotion for Dallow.
On March 10 the members of the Union voted to wear their union
buttons to work. Thereafter, Jack Nass, a shop steward, wore his
button during working hours, along with other members. During
this period Nass had approximately 10 conversations with Foreman
Lipschitz about the Union. Nass testified that Lipschitz "used to
harp on me almost continuously whenever I saw him, telling me I
should not belong to Local 65; that it was a communistic 'organization
and would not get me any place; it wasn't no good for me, that I was
a fool to continue with it." Nass continued to wear his union button
until his discharge on July 11, 1941. On that day Lipschitz asked
Nass, "why don't you take your button off, you are the last one wear-
ing a button in the place. Why don't you take it off?" He also
NEW YORK MERCHANDISE COMPANY, INC. 1091
stated that it would not do Nass any good to wear the button, that
he should realize that he was "beat" and not be a "fool." 11
Employee Oscar Spira testified without contradiction, and we find,
as did the Trial Examiner, that a week or two after Nat Wiliner's
discharge on February 7, 1941, he, Spira, had a conversation with
Assistant Foreman Hyman Hill, during the course of which Hill
remarked that 'he thought Willner had been sent by the Union to
"organize the place." About 4 weeks after this conversation, Hill
made the same statement to Spira in the presence of several other
employees.
One of the most active union men in the plant was Louis Horowitz.
With other employees, he had received a $1 a week wage increase inL
the latter part of January 1941. Thereafter, according to the testi-
mony of Horowitz, Tropp asked Horowitz whether he was a member
of the Union and Horowitz told Tropp that he was. Tropp then
requested Horowitz to drop his affiliation with the Union and to urge-
other employees to do likewise. He further asked Horowitz whether
he was satisfied with his $1 raise, and when Horowitz replied that
he was not, Tropp offered him an additional increase of $1. During
the course of the conversation Tropp questioned, Horowitz about
"subversive activities," and asked whether, in trying to organize the
plant, Horowitz was not an "idealist." Horowitz replied that he
merely wanted to better his condition. At the end of the conversa•
tion, Tropp declared that he would deny ever having talked about
such matters with Horowitz, and at the hearing, Tropp did deny
that he had talked with Horowitz about unions or that he asked him,
to resign from the Union. The Trial Examiner did not credit
Tropp's denials, finding; him an evasive and unconvincing witness..
He found, moreover, that Horowitz, much of whose testimony was
corroborated by other witnesses, was a credible witness. We find
that Tropp made, in substance, the statements attributed to him by
Horowitz.
Anti-union statements were also made by Assistant Foreman Hill
in connection. with a proposal pending before the Association. Hill,
was a member of the Executive Board of the Association. In Febru-
ary 1941 the Executive Board was considering the question of ap-
pointing a committee to discuss with the Union "what an outside' -
union had to offer." At about the time the Association members.
were to vote on this proposal, Hill visited the home of Irwin Tuch-
feld, his nephew. According to Tuchfeld's uncontradicted testimony,,
which we credit, Hill told him to vote against the proposal, to which
/
' The findings concerning Lipschitz 's activities are based on the mutually corroborative'
testimony of witnesses for the Board, which we credit, as did the Trial Examiner. Al-
though Lipschitz denied that he made the anti-union statements attributed to him in this.
section, the Trial Examiner did not credit such denial , nor do we.
1092. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tuchfeld replied that he had "a mind of his own." Hill retorted
that Tuchfeld must be 'a member of the Union, which Tuchfeld
denied. Hill then remarked, "Well, anyway, 'that is all I came to
find out." Hill did.not testify.. We find, as did the Trial Examiner,
that he made the statements set forth herein.
About 2 weeks after this conversation with his uncle, Tuchfeld,_
according to his testimony which we credit, as did the .Trial Ex-
aminer, spoke with Tropp at the respondent's plant. Tropp asked
Tuchfeld if he felt "honorable." . Tuchfeld replied that he had no
cause not to feel so. Tropp thereupon said that whatever he, Tuch-
Feld,, did might reflect upon Hill. He also stated that Hill was re-
sponsible for anything that Tuchfeld might 'do, and that Tuchfeld
should "be careful." The latter replied that Hill did not have to be
ashamed of anything he might do- at the New York Merchandise
Company. 'Tropp did not deny having. had this conversation with,
Tuchfeld. He did deny generally that he had spoken about unions
to any employee. Under all the circumstances, we do not credit
Tropp's denial.
On February 27, 1941, Milton Al. Shaw, vice president of the re-
spondent,' was elected president. On March 7 Shaw addressed the
respondent's employees. The testimony is in conflict' as to what he
said on that occasion. Board witnesses testified that Shaw told the-
employees, in substance, the following : That he had recently been-
elected president of the respondent, and had just returned from a.
trip to Florida; that, contrary to his expectations, he found upon his
return discontented and grumbling employees; that he could not
understand what had happened; and that there was nothing to be
concerned about since their jobs were secure. The discontent, lie'
said, worried him; then he added that he had been informed that
there were employees in the New York Merchandise Company who
were trying to "have an outside organization in the place," and that
its demands were too great and could never be met. He also-
stated-that if the union demands were pressed, the respondent would have
to close its business and confine itself solely to, jobbing.- In con-°
clusion, he remarked that his "door was open" and that he would
gladly listen to employees' grievances..
Shaw, on the other hand, testified that upon his return from
Florida he was advised that some employees were dissatisfied with
the bonuses distributed in the latter part of January, and that he
did refer to that dissatisfaction when he addressed the employees
on March 7. A transcript of his speech, made by his secretary Mrs. '
Rabb 12 was received in evidence. It purports to be a record of all.
12 Mrs Rabb is a member of the Association
NEW YORK MERCHANDISE COMPANY :INC. - " ;1093
that Shaw said. No ,references to "outside organization"s" or to the
Union appear in the exhibit. However, the document shows, and
'Shaw testified, in effect, that he did 'make some statements similar in
content to those attributed to him by the Board witnesses. He
denied, however, that he referred to any "outside organization" and
-testified that he spoke of "outside competition." He later testified
that-lie could not recall using the word "outside" at all. In view of
Shaw's evasiveness on the stand, the `close relationship of Rabb to
the management resulting from her position as Shaw's secretary,
and her membership in the Association, as well as the positive.'and
mutually corroborative testimony of witnesses for the Board, the
Trial Examiner found, and we agree, that Shaw made the statements
attributed to him by Board witnesses as set forth above.
During the second week in March 1941, Shaw called. the employees
of the import department into his office. He first referred to the
fact that an anonymous letter had been sent to the Maritime Com-
mission concerning a natter connected with the import department.
Shaw stated that the sending of this anonymous letter 'made him
doubt the loyalty of his employees. After some further discussion
about the letter, Shaw remarked that those who worked,in the import
department were confidential and trusted employees, and that they
should have nothing to do with "outside influences," that he "would
not tolerate any outside' influence'' in the firm, and that he was always
willing to listen to any complaints the employees might make. Dur-
ing the course of the conversation, Louis Horowitz suggested that
Shaw. telephone olie Blechman, with whom the Union had entered
into a contract, to find out how Blechman was faring with "an out-
side organization." Shaw did not reply to Horowitz's suggestion,
according to the latter''s testimony. Several of the' import depart-
ment employees who were present, among them Theodore Dallow,
Esther Wang, and Louis Horowitz, were wearing their union buttons
at the time Shaw made the speech.13
Arthur Keller, an employee, was a member of the' Union's organ-
izing committee. Keller's name, with this official designation, ap-
peared on union leaflets. He was a friend of Theodore Dallow who
was discharged on March 28, 1941. In July 1941, Dallow telephoned
Keller at the respondent's plant and told him that he could not meet
him that day because he had an appointment with one Kramer, a
Field Examiner for the Board. The plant telephone operator, pur-
" Shaw admitted speaking to the employees of the import department' However, he
claimed that he confined his remarks to the matter of the anonymous letter, and denied
that he mentioned grievances, or inside or outside organizations FIe could not recall any
discussion about Blechman The Trial Examiner did not credit Shaw's testimony in this
regard we agree The Board witnesses mutually coiroborated each other and were
clear and positive in their testimony Our findings , supra, are based upon their testimony.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suant to Shaw's instructions to report to him all calls unrelated to
business, told Shaw about the Keller-Dallow conversation. The fol-
lowing day Shaw called Keller into his office and told him that he
did not want his telephone used for union organization and, after
accusing Keller of having used the telephone for that purpose, stated
that he had "every right to fire him if he cared to." Shaw also told
Keller that he had been seen outside the plant talking to Lou Horo-
witz and Irving Lebold [union organizers] during lunch time, and
that it would be best for him if he gave up these associations. Keller
refused to do so, asserting that he would not give up his friends.
Shaw replied that these friends were "trouble makers and Com-
munists" and that if he, Keller, wanted a union, that would put him
"in the same class with them." Shaw also told Keller that there
was no advancement in union shops, and that if he worked hard
Keller might some day become an assistant buyer, ending the con-
versation with, "I'll do the best for you, if you do the best for me." 14
We find that by the foregoing activities and statements of Shaw,
Tropp, Lipschitz, and Hill, the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
D. The discharges
The complaint, as amended, alleges, and the respondent 's answer
denies, that the respondent discharged and refused to reinstate 10
named employees because they joined the Union. The Trial Exam-
iner found that the evidence did not substantiate the allegations of
the complaint as to 2 of these employees, namely, Nat Willner and
Lawrence May. No exception has been taken to these findings. We
have considered the evidence and agree with the Trial Examiner.
We shall, therefore, dismiss that portion of the complaint which
alleges that Nat Willner, and Lawrence May were discharged by the
respondent because of their membership in and activity on behalf of
the Union.
Theodore Dallow, Louis Horowitz, Esther Wang, Ann Horowitz,
Irwin Tueh f eld, and Sarah Helfer were employed in the, import
department. Each was a member of the Union. It is a fair infer-
ence from all the evidence, and we find as did the Trial Examiner,
that Tropp and Shaw, who selected these employees for discharge,
knew that they were members of the Union.
14 Shaw admitted having talked with Keller about the use of the telephone, and testi-
fied, in substance , that he asked Keller to tell his friends not to "clutter up" the telephone
during working hours. He denied having made the other statements attributed to him
by Keller as set out above. Keller ' s testimony was clear and convincing , we find,
as did the Trial Examiner , that Shaw's testimony is not credible and that Keller's
version of the incident , as set forth above, is substantially correct.
NEW YORK MERCHANDISE COMPANY, INC. 1095
On March 28, 1941, Dallow, Louis Horowitz, Wang, Ann Horowitz,
Tuchfeld, and Helfer, were called to the office of I. B. Cohen, head
of the import department. Cohen informed them that a decline in
the import business forced the respondent to discharge them. He
then read a list of figures, admitted by Board witness Louis Horowitz
to be correct, showing the status of the respondent's imports. Horo-
witz asked Cohen why the employees to be discharged could not be
transferred to other positions, in view of the fact that they had
seniority over a number of other employees in the plant. Cohen re-
plied, "You don't realize the blackness of the situation." Horowitz
then appealed to Cohen, "Why are they firing us, why are they letting
us go . . . We all have experience, why are we being let go." He
testified that Cohen merely shrugged his shoulders and replied that
"it is a black future," and that other employees would probably' be
laid off in the near future.15
The respondent imported about 72 percent of its foreign manu-
factured articles from Japan. Employees in the import department
are engaged in work connected with the purchase, shipment, and
clearance through the customs house, of these imports. The uncon-
tradicted evidence shows, and we find, that the volume of the re-
spondent's imports had been declining rapidly since 1937. In 1937
the import department did $5,000,000 worth of business. In 1939
imports had dropped to $3,000,000; and in 1940, to $2,750,000. For
the first 3 months of 1941, immediately prior to the discharges under
consideration, the respondent imported about $482,000 worth of mer-
chandise; for the comparable period in 1940, the value of such im-
ports amounted to $744,000. Werfelman, foreman of the import
department, testified without contradiction, that the number of in-
voices handled during the first 6 months of 1940 was 561; for the
comparable period in 1941, the number was 263. We are convinced,
from all the evidence, that the business of the import department
had declined substantially. Moreover, as stated above, a large per-
centage of the respondent's foreign imports came from Japan, and
there was additional evidence that because of the difficulty, due to
the international situation, in obtaining goods from Japan, and be-
cause of the boycott against Japanese goods in the United States, the
respondent's officials reasonably believed that the import department
would go out of existence in the near future.
The Union, while conceding that business in the import department
had declined, none the less contended that the employees in question
had been singled out for threat and censure by the respondent shortly
before they were discharged, and that if the respondent had not meant
15 Cohen did not testify, and we credit Horowitz's uncontradicted testimony as did
the Trial Examiner. /
•1096 DECISIONS' 'OF'--NATIONAL,-LABOR RELATIONS. BOARD
Co ' discriminate against them (1) they would have been `transferred
to other, departments arid, (2)' as experienced employees, they would
'have been recalled when business in the import and other departments
improved. '
The respondent's witnesses testified that it was not the respondent's
-policy to transfer employees, when work became slack. Although
there was evidence that employees Miller and Boylan 16 were trans-
ferred from the import ' department to other departments early in
March, both of them were doing only part ' of their work in the im-
port department, the balance of it being performed in the departments
to which they were. transferred. In the spring of 1941, one of the
respondent's attorneys, Turberg, at the request of the Regional Field
Examiner, prepared a pay roll on the basis of information supplied
him by officials of the,respondent. The pay roll bears this legend :
"List is as of April 1st, 1941. Not conclusive as to departments' and
,capacities inasmuch as trend of business and volume requires trans-
ferability from time to time." Although there was additional evi-
dence that the respondent's employees were transferred from time
-to time,' we believe that such evidence falls short of showing that
-transfers were made pursuant to any policy which was ignored in the
case of these discharges., The record does not show what criteria,
such as efficiency, seniority, or versatility were followed in making
transfers. Moreover, there was no -proof that at the time of the
discharges, positions were available to which the discharged em-'
-ployees might have been transferred. Nor was there any evidence
-that it was the respondent's practice to lay off, in accordance with
seniority or on some other basis, employees in other departments in
order to give employment to those working in a department where
business was curtailed.
Prior to March 28, 1941, the import department contained 13 em-
ployees. As previously stated, Miller and Boylan 'were transferred
-to other departments. Five other employees remained in the depart-
ment after March 28. Two of them had special capabilities not
possessed by any of the 6 who were discharged.17 As to the 3 remain-
ing, Verter, Bertin, and Suesskind, there' was no showing that the
respondent acted discriminatorily in retaining them. Suesskind
was a member of the Union. Verter and Bertin were members of
the Association. The record does not disclose the duties of Verter
'QBoylan was a member of the Union but was not active . Miller was a member,of the
Association.
"Their names are Thomas Faiugia and Seymour Millstein, Farugia, assistant to
Foreman Werfelman, was in charge of preparing customs entries so that payment could
be made to the United States Government. Only Farugia and werfelman did this work.
Millstein was a merchandise controller and an expert on Japanese goods. He advised the
merchandise men concerning purchases . None of those laid off was qualified to perform
Millstein 's ccork. . - ,
NEW YORK MERCHANDISE COMPANY, INC. 1097
and Bertin. Upon all the -evidence, we think it cannot fairly be said
that the respondent discriminated against those selected for discharge
by retaining Verter, Bertin, and Suesskind.
The Union contends further that it was the respondent's duty to
recall the 6 employees.when business improved. There is evidence
that the respondent hired some 50 new employees in August and
September 1941. Some of these performed work which the dis-
charged employees could have done. The respondent's -witnesses
testified that it was not the respondent's policy to' recall laid off or
discharged employees. Some pi oof was offered that an employee
named Kass who worked under Tropp, sent a letter in 1938 to one
Anthony Golubiewsky, asking him to report for work if he was unem-
ployed. Kass' authority to send the letter on the respondent's behalf
was denied; but even if he had such authority, we believe that this
one instance is not sufficient to ground a finding, contrary to the posi-
tive testimony of the respondent's witnesses, that its policy was to
recall laid-off employees, 'particularly when there was no evidence
to show that Golubiewsky was a laid-off employee. Jerry Guidice,' a
witness for the Board testified that, after being laid off', he returned
to the plant numerous times to ask for reinstatement;, and that `there=
after, he was notified by the respondent' to report for work when a
position became available. There is no evidence that any of the 6
employees under consideration applied for work subsequent to his
discharge. ' -
The evidence, as related in Sections III B and C, supra, clearly
demonstrates that the respondent was hostile to the Union, and that
employees in the import department had been singled out, individ-
ually and collectively, for criticism because of their interest in an
"outside organization." On the other hand, we are satisfied that' (1)'
the•respondent's import business had seriously declined and it reason
ably believed that it must curtail operations in, that department;.
(2) the respondent had no'policy of'transferring employees to other
positions in the' plant when their'positions were abolished; and (3)'
the respondent did not act discriminatorily in retaining `the em-
ployees whom it con'tinued' to 'employ in the import department.
These considerations gain added weight, moreover, in, view of the.
lack of evidence as to whether there were other positions -open 'to'
which the 'empl'oyees' in question could have been • transferred, €ind
as to what criteria, if,aiiy,'the respondent was accustomed to apply'
when it did make transfers in its plant. Despite grave doubts in the'
matter; we conclude, -as did the ' Trial Examiner, tliat the evidence'
does not sustain the allegation that Dallow, Louis' Horowitz, Wang,
Ann ' Horowitz, Tuchfeld, and Helfer''w ere discharged because" of
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in, or activity on behalf of, the Union. We shall order
the complaint dismissed as to these six persons.
Jack Nass and Martin Slotkin: Nass was employed by the respond-
ent as a stock clerk; he joined the Union on December 10, 1940, and
attended its meetings regularly thereafter. Nass was a member of
the Union's organizing committee and its publicity committee. He
was also a shop steward, representing 25 to 28 stock clerks employed
in 4 or 5 different departments in the plant. He first wore his
steward's button in the plant sometime in the early part of March
1941, and solicited employees to join,the Union. Slotkin was also
employed as a stock clerk. He joined the Union in February 1941,
and occasionally attended union meetings. He started to wear his
union button sometime in March or April 1941.
In the light of the evidence related above in Section III C, it is
clear, and we find, that the respondent was aware of the union mem-
bership and activity of Nass and Slotkin, and has evinced hostility
toward them on that account. Lipschitz, in numerous conversations
with Nass concerning the Union, had called Nass a "fool'' for belong-
ing to a "communistic organization"; and on the day on which Nass
whs discharged, Lipschitz had asked him why he continued to -wear
his union button. When Lipschitz learned that Slotkin had joined
the Union, he warned him that he (Lipschitz) would force Slotkin
to push trucks in the basement "for the rest of his life"; and
threatened to "work him to death."
On July 10, -1941, Nass and Slotkin were wrestling during'working
hours. Jack Brenndel, an assistant buyer in the "B" department, saw
them wrestling. As he passed Nass and Slotkin, Brendel kicked one
of them, and told them to stop wrestling, stating that if they "knew
what was good for them" they would do their wrestling after 6
o'clock, in the street. Brendel testified that he told his superior,
Dr. Weinberg, head of the "B" 'department, about the wrestling that
afternoon. Tropp testified that Weinberg told him the next morning
that Brendel had advised Weinberg that some boys had been
wrestling in the plant.
On the following day Nass and Slotkin returned to work after
lunch. Their duties took them into the main aisle leading into the
shipping room. Nass asked Slotkin to wrestle with him. While
they were doing so, Tropp saw them. Nass, observing Tropp, told
Slotkin to "break up" the wrestling. As the boys were walking away,
Tropp called to them, asked why they were wrestling, and directed
them to go to his office, which they did. Tropp came into his office,
followed a few minutes later by Herman Muh, senior clerk of the
"B" department, and Melvin Cahn, assistant to Dr. Weinberg.
Tropp had requested that Muh and Cahn be present. Tropp asked
NEW YORK MERCHANDISE COMPANY, INC. 1099
Nass to tell Muh and Cahn what had happened, and Nass admitted
that he and Slotkin had been wrestling. When he had completed
his account, Tropp told Nass and Slotkin that they were discharged
and directed them to collect their pay. Cahn attempted to intercede
but Tropp said, "I don't want to hear anything, they are fired."
The record is clear that the respondent permitted its employees
considerable latitude in their conduct in the plant, and that it had
no plant rules restricting their conduct or providing penalties for
misbehavior or inattention to work. Concerning discipline, Tropp
testified that there "was no discipline" in his department; that "every-
body is boss there," and that the employees took "a walk, when they
want to, ... a smoke when they want to." He further testi-
fied that the shipping department, the advertising department, and
the traffic department also had no formal disciplinary rules.
In his speech to the employees on March 7, according to the tran-
script made by Shaw's secretary, Shaw stated :
Where in the whole world can you get a job where you can roam
about as in this building? I
Brendel testified that "lots of times" he had seen employees failing
to pay attention to their work, and that he was very lenient about it,
except that where the breach of discipline was "something impor-
tant," he reported the matter to Dr. Weinberg.
In view of the foregoing testimony and in the light of the entire
record, we do not believe that Nass and Slotkin were discharged be-
cause they had been wrestling on two occasions. That the wrestling,'
without more, would not have occasioned discharge is shown by
Shaw's statement to-Tropp that the boys had to be warned before
they were discharged. Tropp testified, and we find, that he had the
following conversation with Shaw :
Q. Then what did you say to Mr. Shaw and what did Mr.
Shaw say to you.?
A. Well, I told him about catching these boys wrestling.
Q.. Yes.
A. And that Dr. Weinberg had informed me about these boys
wrestling before, and I just asked for instructions, which I do
about these boys.
Q. What did Mr. Shaw say?
A. "Well, if they did it once before and they were warned,"
he says, "then you will have to let them go. Sorry as I am, we
will have to let them go."
Q. Did Dr. Weinberg say,he.had,warned the boys?
A. No, he said that Jack Brendel had told him they I were
wrestling. [Italics supplied.]
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later in his testimony Tropp, again stated that Shaw told him "it
was perfectly all right after (Nass and Slotkin) had received warn-
ing, to-let them go."
Shaw's statement to Tropp that a warning was a condition preced-
ent to discharge, plainly indicates that he did not regard the two
acts of wrestling in themselves as sufficient cause for discharge. The
record is clear that the condition precedent was not satisfied; the
boys were not warned. Tropp's testimony, quoted above, contains
the unequivocal admission that. Weinberg had not told him' that-
the boys had been warned; and Brendel had not spoken to Tropp at
all about the incident. Hence, ,it is obvious that Tropp did not
believe the boys had been warned before he discharged them. It is
also clear that the bo3-s' had not, in fact, been warned. While Brendel
did tell Nass and Slotkin on July 10, that if they "knew what was
good for them" they would do their wrestling after 6 o'clock, in the
street, we find that his statement did not constitute a warning that
anything so drastic. as discharge would- follow a repetition of the
wrestling. It appears that Brendel was somewhat nettled at the
time he saw the boys wrestling because, unable to obtain by' telephone
certain materials from the shipping room, he had to get them him-
self, and was thereby forced to keep a customer awaiting while he did
so. The statement he made to the boys was the expression of momen-
tary irritation and was not, either in its 'content or in its manner, a
warning.
'It Js significant, also, that Tropp called Muh and Cahn into his'
office to hear Nass and Slotkin give their versions of the incident.
The respondent did not explain why Muh and Cahn were called into`
Tropp's office. Since Tropp had questioned Nass at the time he'
observed the misconduct, the only apparent purpose of the further
questioning in the presence of Muh and Cahn was to build up a
defense against a charge of discrimination. -
Discipline by so drastic and final a measure as discharge appears
not to have been justified by the-conduct sought to be corrected. The
cause of this incommensurate treatment is to be found, we believe,
in the respondent's opposition to the Union. That -opposition was
directed generally at all the` employees by the speeches of Shaw and
Tropp, and by the respondent's continued domination of the Associ-
ation; and it was directed specifically at Nass and Slotkin by the
statements of Lipschitz and Tropp. - Tropp's opposition to the
Union, his knowledge that Nass and Slotkin belonged to it, their
discharge without warning, and the marked contrast between- the
treatment accorded them and the respondent's confessed leniency with
regard. to discipline, justify the conclusion reached by the Trial Ex-
aminer that these discharges were discriminatory. The respondent=
did not except to the Trial Examiner's findings in this respect.
NEW YORK MERCHANDISE COMPANY, INC. 1101
We find that the respondent discharged Jack Nass, and Martin
Slotkin on July 11, 1941, and thereafter refused to reinstate them,
because of their union membership and activity, and that the respond-
ent thereby discriminated in regard to their hire and tenure of em-
ployment, discouraged membership in the Union, and interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed 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 of the respondent de-
scribed in Section I above, have a close,' intimate, and substantial)
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices we shall order it to cease-and desist therefrom and to take
certain affirmative action designed to effectuate the policies of 'the Act.
We-have found that the respondent dominated and interfered with
the administration of the New - York Merchandise Company Em-
ployees Association, and contributed, financial and other support to it.
Accordingly, we shall order the respondent to withdraw all recog-
nition from that organization as the representative of its employees
for the purpose , of dealing with. the respondent' concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
conditions of employment, and completely disestablish the Associa-
tion as such representative.
We have further found that the respondent discriminated in regard
to the hire and tenure of employment of Jack Nass and Martin
Slotkin because of their union membership and activity. We shall,
therefore, order the respondent to offer them immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges.
We shall further order the respondent to make whole Nass and
Slotkin for any loss they have suffered by payment to each of a sum
equal to the amount which he normally would have earned as wages
from. the date of his discharge to the date of the respondent's offer
of reinstatement, less his net earnings during the said period.18
ii By net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking - employment elsewhere
See Matter of Crossett Znimber Company and United Brotherhood of Carpente,s and
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, and upon the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Wholesale and Warehouse Employees of N. Y. Local
65, affiliated with United Retail and Wholesale Employees of Amer-
ica, C. I.0.; and New York Merchandise Company Employees Asso-
ciation are labor organizations within the meaning of Section 2 (5)
of the Act.
2. By dominating and interfering with the administration of New
York Merchandise Company Employees Association and by contrib-
uting financial and other support to it, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Jack Nass and Martin Slotkin, thereby discouraging mem-
bership in a labor organization, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise 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.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. By discharging Nat Willner, Lawrence May, Theodore Dallow,
Louis Horowitz, Esther Wang, Ann Horowitz, Irwin Tuchfeld, and
Sarah Helfer, the respondent has not engaged in unfair labor
practices within the meaning of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, New York Merchandise Company, Inc., New York City, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of, and contributing financial or other support to, New York
Joiners of gmerioa, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R B 440.
Monies received for work performed upon Federal , State, county , municipal , or other
work-relief projects shall be considered as earnings. See Republic Steel Corporation V.
N. L. R. B, 311 U. S. 7. 1
NEW YORK MERCHANDISE COMPANY, INC. 1103
Merchandise Company Employees Association, or any other labor
organization of its employees; k -
(b) Recognizing New York Merchandise Company Employees As-
sociation as a 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 any other conditions of
employment;
(c) Discouraging membership in United Wholesale and Warehouse
Employees of N. Y. Local 65, affiliated with United Retail and
Wholesale Employees of America, C. I. 0., or any other labor organi-
zation of its employees, by discharging or refusing to reinstate any
of its employees or in any other manner discriminating in regard
to their hire and tenure of employment-or any term or condition of
their employment;
(d) 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 purposes of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from New York Merchandise Com-
pany Employees Association as the representative of any of its em-
ployees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment and completely disestablish New
York Merchandise Company Employees Association as such repre-
sentative;
(b) Offer to Jack Nass and Martin Slotkin immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
(c) Make whole Jack Nass and Martin Slotkin for any loss of pay
which they may have suffered by reason of the respondent's discrimi-
nation against them by payment to each of a sum of money equal to
the amount which he normally would have earned as wages during
the period from the date of his discharge, to the date of the respond-
ent's offer of reinstatement, less his net earnings during said period;
(d) Post immediately in conspicuous places throughout its plant
in New York-City, 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), (c),
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (d) of this Order; (2) that the respondent will take the affirma-
tive action set forth in paragraphs 2 (a), (b), and (c) of this Order;
and (3) that the respondent's employees are free to become or re-
main members of United Wholesale and Warehouse Employees of
N. Y. Local 65, affiliated with United Retail and Wholesale Em-
ployees of America, C. I. 0., and that the respondent will not dis-
criminate against any employee because of membership in or activity-
on behalf of that organization ;
(e) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith, and
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent committed unfair
labor practices within the meaning of the Act by discharging Nat
Willner, Lawrence May, Theodore Dallow, Louis Horowitz, Esther-
Wang, Ann Horowitz, Irwin Tuchfeld, and Sarah Helfer.
Signed at Washington, D. C., this 19th day of June 1942.
MR. GERARD D. REILLY took no part in the consideration of the,
above Decision and Order.