Revlon Products Corp.

National Labor Relations Board - Board Decisions

Apr 14, 1943

48 N.L.R.B. 1202 (N.L.R.B. 1943)

In the Matter of REVLON PRODUCTS CORPORATION and WHOLESALE &
WAREHOUSE WORKERS UNION, LOCAL 65, C. I. O.
Case No. C-2313.-Decided April 14, 19J
Jurisdiction : cosmetic assembly and distribution industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: arranging to have police present at re-
spondent's premises ; altering hours of work to hinder organizational activities ;
attempting to prevent union organizers from communicating with employees ;
interrogating employees regarding union affiliation ; making derogatory state-
ments concerning the union.
Discrimination: transfer and discharge of one employee, because of union mem-
bership and activity; discharge of a second employee for the same reason.
Remedial Orders : reinstatement and back pay awarded, back pay for deceased
employee to be paid to her estate : respondent to pay money equivalent of insur-
ance or death benefits which would have been payable upon death of discharged
employee had she not been discharged.
DECISION
AND
ORDER
On September,9, 1942, the Trial Examiner issued his Intermediate
Report 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 out in the copy of the Intermediate Report
attached hereto. Thereafter the respondent filed exceptions to the
Intermediate Report and a brief in support of the exceptions. The
Union has not excepted to the 'findings and recommendations of the
Trial Examiner. During the hearing, the Trial Examiner made sev-
eral rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby af-
firmed. Pursuant to notice, a hearing for the purpose of oral argument
was held on March 16, 1943, before the Board, at Washington, D. C.
The respondent appeared by counsel and participated in the hearing;
the Union did not appear. The Board has considered the Intermediate
Report, the exceptions, the brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the exceptions and qualifications noted below.
48 N. L R. B., No 14G.
1202
REVLON PRODUCTS CORPORATION 1203
,1.. We are unable to agree with the Trial Examiner 's finding ,that,
on the morning when many employees reported for work wearing
union buttons , the respondent , by Osborne 's behavior while walking
through the plant, intimidated the employees . Osborne was the re-:
spondept 's production manager; according to his undisputed testi-
mony, it, was his custom to walk through the plant each day: We are,
not satisfied that his conduct on the morning in, question was either
unusual or improper ; and we find that it did not constitute interfer-
ence, restraint , and coercion within the meaning of Section 8 ( 1) of the
Act. Nor do we agree with the Trial Examiner's finding that Osborne
and Soroko , with the aid of the New York City police, kept under
surveillance the union activity of the respondent 's employees. It ,is
true that while the Union was engaging in organizing activity in front
of the respondent 's plant, Soroko occasionally was seen on the street
near the building where the plant was located, and both Osborne and
Soroko on a number of occasions looked out of the windows'of the
plant, down to the street , five or six stories below . On the basis of
the entire record, however , we are not convinced that Osborne and
Soroko engaged in conduct deliberately designed to survey the organ-
izational activities of the Union, and we find that their afore-men-
tioned conduct did not constitute interference , restraint , and coercion,
within the meaning of Section 8 (1) of the Act.- As, for the partici-
pation of the New York City police,. while it is clear that the police
were assigned to the plant at the respondent 's request , and prevented
employees from standing on the street near the building where the
respondent 's plant was located , nowhere in the record is there airy
indication that the police aided the respondent 's officials in keeping
under surveillance the union activity of the , employees. However, we
infer and find that the presence of the police detail, for which the re-
spondent was responsible , had, the necessary effect of discouraging
the Union's organizing activity. We agree with the Trial Examiner's
findings and conclusion that Soroko 's purpose in calling the police was
to prevent the Union from organizing the respondent's employees;
and we find that by arranging to have the police present at its premises,
the respondent interfered with, restrained , and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. With respect to the changing of the lunch hour for female em-
ployees, we find it significant that when the respondent decided to
stagger the lunch periods of its employees , it did so, not on the basis
of a grouping of employees by floor or by department, but rather on
the arbitrary basis of separating male from female employees through-
out the plant . This circumstance , we think, lends further support to
the Trial Examiner 's finding that the respondent separated the male
521247-43-vol. 48-77
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the female employees during the lunch hour in order to prevent
organization of the female employees.
3'. In connection with the discharge of Madeline Werner, we note
that while Werner was allegedly discharged for kicking Rodriguez,
the respondent apparently was willing to overlook Rodriguez ' partici-
pation in the "kicking incident ." Although it appears that Rodriguez
had whistled at Werner and had grabbed her ankle, it does not appear
that Rodriguez was disciplined in any way ; and he remained in the
employ of the respondent until he was discharged in connection with
an unrelated incident , some 2 months thereafter . We find that this
disparity of treatment supports the Trial Examiner's finding that
Werner was discharged because of her membership- and activity on
behalf of the Union
TIIE REMEDY
At the oral argument, the respondent informed the Board that
Madeline Werner has died since the hearing. We will therefore mod-
ify- our usual order with respect to her. In order to effectuate the
policies of the Act, we will require the respondent to make whole Wer-
ner's estate for any loss of earnings suffered by her as the result of her
wrongful discharge . Since Werner's employment ceased because of
the respondent 's unfair labor practices , she remained an employee
within the meaning of the Act until her death, and as such was en-'
titled to any and all bonuses , emoluments , insurance coverage, and
other benefits and perquisites accorded by the respondent to its em-'
ployees, and which she would have enjoyed but for her discharge. We
shall therefore further order the respondent to make whole Werner's
personal representatives and any other person or persons who , if Wer-
ner had not been wrongfully discharged, would have been entitled
upon her decease to such bonuses, emoluments, and insurance or other
death benefits, for any deprivation or loss in respect of such benefits
as they may have suffered by reason of her discharge.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Revlon Products Corpora-
tion, New York City , and its officers , agents, successors , and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in Wholesale & Warehouse Workers,
Union, Local 65, affiliated with the Congress of Industrial Organiza-
tions, or in any other labor organization of its employees , by discrim-.
REVLON PRODUCTS CORPORATION 1205
inating in regard to hire or tenure of employment or any term. or con-
dition of employment;
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the rights of self-organization , to form,
join, or assist labor organizations , to bargain collectively through-rep-
resentatives of their own choosing , or to engage in concerted activities
for the purposes of collective bargaining'or other mutual aid or pro-
tection, 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) Offer to George Shapiro immediate and full reinstatement to his
former position in the shipping department or to 'a position substan-
tially equivalent thereto, without prejudice to his seniority and other
rights and privileges;
(b) Make whole George Shapiro for any loss of pay he may have
suffered by reason of the respondent 's discrimination against him by-
payment to him of a sum of money equivalent to that 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 earn-,
ings during said period ;
(c) Make whole the personal representatives of Madeline Werner
and any other person or persons whose interest may appear for any ,
deprivation or loss they may have suffered by reason of the respondent's
discrimination against Werner, by (1) payment to said personal repre-
sentatives of a sum of money equivalent to the amount Werner would
normally have earned as wages from the date of'her discharge to the
date of her decease, less her net earnings during said period, and (2)'
payment to said personal representatives and to such other persons,
if any, as their interests may appear , of a sum or sums of money equiva-
lent to the difference between the amount of anyboniises , emoluments,
and insurance or other death benefits heretofore paid or now payable
to them by persons other than the respondent , and the amount of such
bonuses , emoluments, and insurance . or other death benefits which
would have been payable to them upon Werner's decease had she not
been discharged;
(d) Post immediately in conspicuous places throughout its plant'
at 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) and (b) of,
this Order; ( 2) that the respondent will take the affirmative 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 remain members'
of Wholesale & Warehouse Workers Union, Local 65, affiliated with
1206 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
the Congress of Industrial Organizations, and that the respondent
will not discriminate 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 re-
spondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. George Turitz, for the Board.
Blumberg & Kleeblatt, by Mr Melvin Kleeblatt and Mr. Leon Singer, of New
York, N. Y., for the respondent.
Mr. Edward Kuntz, by Mr. Sidney N. Gitelman, of New York, 'N. Y., and Miss
Anne Becker, of New York, N. Y., for the Union:
STATEMENT OF THE CASE
Upon a third amended charge duly filed on January 24, 1942, by Wholesale
and' warehouse Workers Union, Local 65, affiliated with the Congress of Indus-
trial Organization,' 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 June 1, 1942, against Revlon Products
Corporation, New York City, herein calledothe respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and (3), and Section 2 (6) and
j7) of the National Labor Relations Act, 49, Stat . 449, herein called the Act. The
complaint and notice of hearing thereon were duly served upon the respondent
and the Union.
With respect to the unfair labor practices, the complaint alleged in substance :
(1) that from about February 1941 to the date of the complaint the respondent
vilified, disparaged and expressed disapproval of -the Union ; interrogated its
employees concerning their union affiliations ; urged, persuaded, threatened, and
warned its employees to refrain from assisting , becoming members of, or re-
maining members of the Union ; kept under surveillance the meeting places,
meetings and activities of the Union and the concerted activities of its employees ;
altered hours of work for the purpose of hampering and'preventing organizational
activities among its employees ; and prevented organizers of the Union from com-
municating with its employees; (2) that from'oil or about August 16,`1941, to
,on or about October 31, 1941, the respondent discriminated against George Shapiro,
demoted him to an inferior position, and assigned him to more arduous and less
agreeable work; that the respondent discharged Madeline Werner and George
Shapiro on August 4 and October 3l, 1941, respectively, and has since those dates
failed and refused to reinstate them; that the respondent discharged Weiner and
demoted and subsequently discharged Shapiro and thereafter failed and refused
' At the beginning of the hearing , the undersigned granted, without objection, the
Board's motion to amend the complaint in the caption and elsewhere by inserting the
word "and" between the words "wholesale " and "warehouse "
REVLON PRODUCTS CORPORATION - 1 .1 .1207
to reinstate them for the reason that they joined and assisted the Union and
engaged in-other concerted activities for the purposes of collective bargaining
and other mutual aid and protection; and (3) that by these acts the respondent
interfered with, restrained, and coerced its employees in the .exercise of the
rights guaranteed in Section 7 of the Act.
The respondent filed an answer dated. June 11, 1942, containing no averments
with respect to the jurisdictional allegations of the complaint, and, denying the
unfair labor practices alleged therein. The respondent filed a motion for a bill
of particulars, dated June 11, 1942 The undersigned, on June 30, 1942, issued
an order granting in part and denying in part said motion for a bill of particulars.
On or'about July 2, 1942, the Board served a, bill of particulars upon the respondent
and the Union.
Pursuant to notice, a hearing was held from July 6 to July 13, 1912, at New
York City, before the undersigned, the Trial Examiner duly designated by the
Chief Trial Examiner. The Board and the respondent were represented by
counsel, the Union by counsel and a representative, and 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. At
the close of the Board's case, and again at the close of the hearing, the respondent
moved to dismiss the complaint for lack of sufficient evidence. These motions
were denied. Near the close of the hearing, the Board moved to conform the
pleadings to the proof. This motion was granted At the conclusion of the
hearing, all parties waived the right to argue orally before the undersigned,
but.reserved the right to file briefs with him Only the respondent filed a brief.,
Upon the entire record of the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FAUr
I THE BUSINESS OF THE RESPONDENT
The respondent, Revlon Products Corporation, is a New York corporation hav-
ing its principal office and only plant inI New York City, where it is engaged in
the assembly, sale and distribution of cosmetics and related products. The
principal materials and supplies used by the respondent are bottles; bottle caps;
cartons, nail enamel, lipstick, and manicure implements During the year 1941,
the respondent purchased in excess of .$250,000 worth of such materials and sup-
plies, of which more than 75 percent was shipped to the respondent's plant in
New York City from points outside the State of New York. During the same
period, the respondent's sales of its finished products exceeded $500,000, of which
more than 80 percent was shipped by the respondent to points outside the State
of New York. The respondent stipulated at the hearing that it is engaged in
interstate commerce within the meaning of the Act.
H. THE ORGANIZATION INVOLVED
Wholesale and Warehouse Workers Union, Local 65, is a labor organization
affiliated with the Congress'of-Industrial^Organnizations,.,admitting to member-
ship, among others, employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In February 1941, the Union -began secretly to organize the, respondent's em-
ployees Members of the Union who were not employed by the respondent dis-
' 1208 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
tributed union literature outside the building in which the respondent's plant
is located. On February 19, 1941, four of the respondent's employees went to
the Union's headquarters and signed applications for membership in the Union.
When these employees pointed out the failure of previous attempts to organize
the respondent's employees, it was decided to keep secret the identity of the
respondent's employees participating in the organizational activities. Until the
last' of July, members of the `Union not employed "by, the respondent continued
openly at lunch hour and -before and after work to distribute union literature to
the respondent 's employees and to solicit their membership in the Union, while
the respondent's employees who had joined the Union worked secretly to the
same end. By late July, 50 or 60 of the respondent 's approximately 150 regular
employees had joined the Union. '
On August 1, pursuant to a decision reached at a union meeting the previous
evening attended by approximately 55 of the respondent's employees, almost all
of the regular employees who had joined the Union wore their conspicuous union
buttons to work, thus demonstrating for the first time the Union 's strength
among the respondent's employees. There is some dispute in the record with
respect to the respondent 's reaction to this show of union membership among
its employees. Leonard Mauriber and George Shapiro testified that during the
morning of August 1, James L. Osborne, the respondent's production- manager,
and Mark D. Soroko, the respondent's service manager,' walked slowly through
the plant scrutinizing those employees who were wearing union buttons. Made-
line Werner corroborated Mauriber and Shapiro with regard to Soroko's activity.
Osborne denied engaging in this conduct and testified that Soroko was not in
the plant at any time on that day. Soroko likewise denied engaging in this
conduct and testified that he, in fact, was in Nantasket, Massachusetts, on that
day. Counsel for the Board, although given sufficient opportunity, was unable
to discredit Soroko's testimony as to his whereabouts on August 1. The under-
signed credits the testimony of i\Iauriber and Shapiro with respect to Osborne's
conduct, and finds that on August 1, Osborne scrutinized the employees, taking
particular note of those who were wearing union buttons. The undersigned,
however, rejects the testimony of Mauriber, Shapiro, and Werner with respect
to Soroko's conduct on August 1.4
3 The respondent 's plant is located on the 5th and 6th floors of a 12 -story loft building.
This building houses other places of business , all of which are served by a common en-
trance , lobby , and elevators Unless it is specifically so stated , none of the activities
referred to herein took place in that part of the building occupied by the respondent.
For the sake of brevity , however, the building and its appurtenances are frequently re-
ferred to as the respondent ' s plant
3 Soroko, as service manager, is charged with the duty of investigating thefts of mer-
chandise about the plant , maintenance of order among the employees , enforcement of
fire and health regulations in the plant , protection of the respondent 's property, and main-
tenance of relations between the respondent and its distributors . Ile has power to
discharge employees or take any other action against them necessary to the performance
of his duties The respondent clearly is answerable for his conduct
4 Rejection of the testimony of Mauriber , Shapiro , and Werner ruith respect to Soroko's
activity on August 1 does not, in the undersigned's view, detract from the credibility of
Mauriber 's and Shapiro's testimony concerning Osborne ' s activity . Upon their testimony
as a whole, their demeanor on the witness'stand, and upon the entire record, the under-
signed finds Mauriber and Shapiro to be credible witnesses . Soroko , as will later appear,
was the spearhead of the respondent's anti-union drive. Beginning on August 4, he was,
contrary to custom , around the plant daily at the time when the employees were attempt-
ing to engage in organizational activities On many such occasions he demonstrated
his contempt for the Union. This would naturally , in the employees ' minds , identify
Soroko with all of the respondent 's anti -union conduct. The Trial Examiner is of the
opinion, and finds that Mauriber , Shapiro, and Werner were honestly mistaken as to
Soroko 's presence in the plant on August 1.
REVLON PRODUCTS CORPORATION 1209
Respondent's employees commenced work at 8 o'clock in the morning.' At
about 7: 15 on the morning of August 4, approximately 30 of the respondent's
employees, together with Leon Rosenberg, the Union's organizer,5 formed a double
line leading to the entrance of the building in which the plant is located. All
those who entered the building were compelled to pass through this double line.
In this manner union literature was distributed to all who entered the, building.
This, was the first time that the respondent's employees had participated in the
distribution of union literature at or near the respondent's plant.' At 8 o'clock
the group"disbanded, and the respondent's employees assumed their duties. - '
At lunch time on that day, Rosenberg returned to the respondent's plant. Con-
cerning what then occurred, Rosenberg testified in substance as follows: When
Rosenberg arrived at the plant, Soroko was standing in front of the building.
When Rosenberg spoke to two female employees about the Union and followed
them into the building to continue his attempt to interest them in the Union,
Soroko entered the lobby of the building and said to Rosenberg, "Get the hell
out of here. Get out before I throw you out." When Rosenberg refused to leave,
Soroko pushed him out of ' the building. An argument then ensued between
Soroko and Rosenberg, during which Soroko again told Rosenberg to leave the
place and "dared" him to try to reenter the building, which Rosenberg started to
do but desisted upon the request of the building superintendent. When another
employee attempted to encourage Rosenberg in his argument with Soroko, the
latter exclaimed, "Why don't you go back to Russia?"
Soroko's version of this incident is substantially the same as Rosenberg's,
except that Soroko testified that Rosenberg and a group of employees from the
nearby plant of the Grand City Container Corporation who had since early
June been assisting Rosenberg in his attempts to organize the respondent's
employees, were physically and with threatening violence restraining the respond-
ent's employees against their will, and that this group of union members was
singing, shouting, and causing great commotion. Soroko testified that he pushed
Rosenberg from the building because the two employees whom Rosenberg had
followed into the building were attempting to get on the elevator and Rosenberg
was trying to pull one of the employees away from the elevator while her com-
panion was attempting to pull her into the elevator. Soroko attempted to
justify his action against Rosenberg on the ground that he was merely protecting
the employee's right to freedom of action The respondent, however, called
neither of the employees alleged to have been involved in this incident to corrobo-
rate Soroko's testimony. Rosenberg denied that he had touched any of the female
employees and also denied that he attempted, physically to restrain any of the
employees He testified that on August 4 there were no Grant City employees
present at the respondent's plant during lunch hour.
The undersigned does not credit Soroko's testimony with respect to Rosen-
berg's conduct on the occasion or with respect to the other alleged violence or
impending violence. Soroko was unable to name,anyone who was so menaced,
and no employees were called by the respondent to corroborate his testimony.
The undersigned was unfavorably impressed with both Soroko's testimony and
his demeanor on the witness stand. His testimony contains many exaggerated
statements. On non-essential matters his manner was natural and his testimony
fluent ; on crucial matters it was given as if by rote The undersigned credits
Rosenberg's.testimony and finds that Soroko, without justification, interfered
with•the Union's attempts legitimately to interest the respondent' s employees in
the Union. The undersigned further finds that this incident took place, not on
s Rosenberg ceased to have any connection with the Union in December 1941.
1210 DECISIONS OF NATIONAL'LABOR RELATIOXS BOARD
the respondent 's premises , which are located on the 5th and ' 6th floors of the
building, but in the ground floor lobby and on the 'street in front 'of the building. '
After this altercation 'with Rosenberg , Soroko phoned the New York City
police and , at their suggestion ,' went to the police headquarters and' registered
a formal complaint . He was told to call the police the next day if necessary.
On August 5, at lunch time, Rosenberg and a group of Grand City employees
came to the respondent 's plant. Concerning what occurred on- this occasion,
Rosenberg testified that the following occurred : When they reached the building
they saw Soroko "in a car parked across 'the street. When Rosenberg, his
Grand City companions , and certain - of the respondent 's employees began talking
to other employees , Soroko left the parked car, entered the building in which
the respondent 's plant is located , returned to the front 'of the building after
10 or 15 minutes , and shortly thereafter three police cars' arrived 'at the scene.
The police sergeant in one of the cars spoke to Soroko and then told Rosenberg
"to get out , get off the street" Rosenberg stated that lie was talking to the
employees about the Union To' this the sergeant repli ed, "You can't organize
on the sidewalk ," pushed Rosenberg and his companions off the street, ' and
told Rosenberg that if he saw him there the next day he would "lock [ himj up."
The undersigned credits Rosenberg 's testimony and finds that the events occurred
as testified to by him. Soroko admitted that lie called the police on this occasion
when he saw 'Rosenberg and "four or five fellows" approach the building because
he "anticipated the repetition of the day before:"
Soroko testified that he called the police in the first instance on August 4
because "groups of outsiders were pushing and holding girls . . . three or four
big husky fellows get hold of a girl , then they would surround her and wouldn't
let her walk into the,building ." He further testified that the crowd was "push-
ing," "mauling" and "milling" about. His testimony is corroborated by ' that
of Osborne , who testified that he heard shouting and commotion in the - street
and observed employees being interfered with and stopped , as they were corning
and going to work. Osborne , however, was unable to name any employees who
were molested or who complained of being interfered with. Respondent failed
to call as witnesses any of its employees who are claimed to have been pushed
and mauled about. Mauriber testified that the visiting union members made
no noise, and that the respondent 's employees were not threatened or assaulted.
Detective Lawrence Bauer testified that he was around the plant at 'lunch
time during the period in question and that he saw no disorder around the plant.
Patrolman Henry Schulman , who was at the plant almost daily before and
after working hours and at lunch time , testified that, "It was really hard to see
just what they [the employees and visiting union members ] were doing But
we broke it up and chased them." He further testified that some of the girls
complained that they were "annoyed" by the men who "were stopping them
and talking to them ," but admitted that he did not see any man "lay a hand
on any girl ," and saw no girl "getting pushed around." Sergeant Edward J.
Shell described the so-called commotion as a union organizer with two or three
other persons standing "outside the building . . . hollering . . . handing out cir'
culars." It has been found that on August 4 there was no crowd of "outside"
persons at the plant . Upon this evidence , almost all of which is the testimony
of the respondent 's witnesses , the reason advanced by Soroko for calling the
police is not credited . Soroko also testified that on the morning of August 4,
Osborne told him that there had been "quite a bit of commotion " on Friday,
August 1, and that Osborne had made reference to the distribution of union
literature on the morning of. August 4, and stated that "union activities are
getting very violent. " Soroko admitted , however, that Osborne did not say,
REVLON PRODUCTS'CORPORATION 1211
I
and that he did not ask, of 'what. the "violence" .'and "commotion" consisted.
He testified that Osborne told him merely that' here was "a bit of shouting on
Friday at noon hour," but did not name anyone who had done the ' shouting.
Osborne testified that he conferred with Soroko about getting protection for
the employees after he had received several reports that the plant was going
to be visited by a "strong-arm group " He was unable, however, to name anyone
who gave him such reports. The undersigned does not credit Osb6rne's testimony
with reference to his stated reason for suggesting that the police be notified.
There is no other credible evidence to support a finding that the Union's alleged
violence required police protection for the respondent's employees. The only
reasonable inference is, and the undersigned finds, that Soroko's purpose in calling
the police was-to obtain their assistance in his efforts to prevent the Union from
organizing the respondent's employees.
Beginning on August 5, and continuing thereafter, the New York City police
daily patrolled the street in front of the respondent's plant for about 11/% hours at
lunch time and before and after working hours. One policeman was stationed
in front-of the,plant and one or two, occasionally three, police cars escorted, the
,female employees away from the plant. The police prevented the employees'from
forming any kind of groups and would not permit them to stand in front of the
plant, or even on the same side of the street. Estimates of the length of the
,period during which this police patrol continued vary from 3 weeks to 5 months.
Police Lieutenant Frederick Wendell, who assigned the officers to this detail, testi-
fied that it continued until "the latter part of the year " Sergeant Shell and
Patrolman Schulman, who were at times assigned to this detail, testified'that"the
patrol continued for "four or five weeks." Upon the testimony of these witnesses
for the respondent, the undersigned finds that the New York City police, 'upon the
respondent's request, patrolled the area in front of the respondent's plant,for 11/2
hours at lunch time and before and after working hours on each working day
for a period of at least 5 weeks.
In 'addition to the police 'patrol, Osborne surveyed the employees' activity from
his office window, and Soroko watched the activity both from an office window
and from the street in front of the plant The conduct of Osborne and Soroko
was deliberate,' not casual. The employees were'fully aware that they were
being watched The undersigned finds that Osborne and Soroko, with'the aid of
the New York City police, kept under surveillance the union activity of the
respondent's employees.
Prior to August 8, 1941, all of the respondent's employees went to lunch from
12 noon to 1 p m. Some time during the week prior to August 8, Sergeant Joseph
Pavlik suggested to Soroko that lunch hours be staggered as "that would not cause
the sidewalk to be so obstructed." Soroko passed this suggestion on to Osborne
Beginning on August 8, the respondent's female employees, upon Osborne's orders,
began taking their lunch hour from' I to 2 p in., while the -male employees con-
tinued their 'lunch hour from 12 noon to 1 p. in. This segregation of'employees
by sex during the' lunch ;hour is significant. The Union was utilizing the
employees'- lunch hour-to interest them in the Union.' By this time, almost all of
the male employees had joined the Union; only 8 of the female employees, had
joined Of these 8, only one was active;Madelihe Werner was the only girl who
wore a union- button on August 1'and•the only girl who'particiliated in the'di"stri-
bution of union literature-on August 4. The undersigned finds,that this segregw-
tion of employees during the lunch hour *as'for the pur,pbse'of' hindering'the
Union's attempt to organize the female employees.
-' Since the" staggering of the lunch hour prevented the-respondent's male 'em-
ployees from attempting to'organize the female employees during 'the lurich hour,
1212 DECISIONS OF' NATIONAL LABOR ' RELATIONS BOARD
Rosenberg decided to seek the assistance of the shop steward in the Decca Record
plant located in the same building , that houses the respondent 's -plant. Accord-
ing to Itosenberg's undisputed testimony, which is credited, when Rosenberg,
about August 11, entered the building on this mission , Soroko, who was standing
in front of the building , followed Rosenberg to the elevator and inquired where
he was going . When Rosenberg entered the elevator and said he wanted to get
off at "Decca Records," Soroko called out , "Fifth Floor." Rosenberg , apparently
mistaking Soroko's words for the location of Decca Records, got off at the fifth
floor Soroko, too, left the elevator, and, when Rosenberg started to enter a door
which was unmarked, Soroko informed him that'that door led to the respondent's
plant , and told him to "get out of here." Rosenberg reentered the elevator and,
.upon proper directions from the elevator operator , went to the tenth floor of
the building where the Decca Records plant is located Soroko followed Rosen-
berg to the door of the Decca Records plant The undersigned finds that this ac-
tivity of Soroko was but a continuance of his surveillance of Rosenberg beyond the
limits of the respondent 's property , and was engaged in for the purpose of inter-
fering with the Union 's attempts to organize the respondent 's employees.
On August 9, Osborne called Mauriber to his office for an interview with Soroko
concerning some threat against Soroko that Mauriber was supposed to have made.
Mauriber testified that when he asked Soroko why it was necessary to have police
in front of the building , Soroko replied that "as long as there is a union button in
the place, the police would remain there " Mauriber further testified that Sor_oko
stated, among other things , that the employees were separated at lunch time in
order to keep the male employees from -talking to the female employees ; that
Soroko asked him why he joined the Union "which was a union of communists
and guerillas" ; and stated that if the employees went out on strike the Union
would "knife us in the back ." Mauriber testified that Osborne , on this occasion,
handed him a newspaper clipping stating that the Union was "a communistic
union" and told him to read it. Soroko admitted that during this interview he
referred to the union members from other plants who had visited the respondent's
plants during the lunch hour as "that bunch of hoodlums." He testified that
Mauriber suggested that Soroko probably thought the Union was "a bunch of
Communists " and that he thereupon replied that he had no interest in union
activities . Soroko did not deny making the other statements attributed to him
by Mauriber Osborne, who was present throughout the interview, was not
examined in detail concerning it. Osborne 's assistant, Hastall , who was present
throughout the interview , was not called as a witness . The undersigned credits
Mauriber 's testimony and finds that Soroko made the statements and that Osborne
requested Mauriber to read an anti-union newspaper clipping as testified to
by Mauriber.
Sometime during the latter part of August,. Soroko, according to Shapiro's
testimony , came to where Shapiro was working and asked him to have an "off
the record chat" in Osborne's office, and that upon his arrival in Osborne's office,
Soroko said , "I guess you know why you are here. I am trying to find out why
you really joined Local 65." Shapiro further testified that Soroko added, "As
far as I am concerned , they are a communist outfit. I don't advise a sensible boy
like you to tie yourself up with them ." Soroko denied having such a conversation
with Shapiro , and denied making at any time the statements attributed to him
by Shapiro . The undersigned credits Shapiro 's testimony , rejects Soroko 's denial,
and finds that the interview took place and that Soroko made the statements
as testified to by Shapiro.
The -undersigned finds that by the statements and conduct of Production Man-
ager Osborne and Service Manager Soroko, as set,forth above, the respondent
REVLON-PRODUCTS CORPORATION 1213
vilified, disparaged, and expressed disapproval of the Union ; interrogated certain
of its employees concerning their union affiliation ; kept under surveillance the-
concerted organizational activities of its employees and the Union's organizer;
by altering hours of work and by other means attempted to hinder and prevent
organizational activities among its employees ; attempted to prevent the Union's
organizers from communicating with its employees ; and by these acts has urged,
persuaded, threatened, and warned its employees to refrain from assisting, becom-
ing, or remaining members of the Union. The undersigned further finds that by
the statements and conduct above set forth the'respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.'
The record does not support the allegation of the complaint that the respondent
kept tinder surveillance the meetings and meeting places of the Union
B. The discharges
Madeline Werner joined the union on March 4, 1941, and immediately there-
after became active in the Union's behalf. She was a member of the Union's
organizing committee and while at or near the plant during lunch hour, and
before and after work, she solicited many of the respondent's employees to join
the Union. She "signed up" 52 of the 90 employees who joined the Union 7
Werner began wearing her union button in the plant early in May, about two
months before any of the other employees did so, and Production Manager
Osborne admittedly was aware of this. In June, Werner was elected secretary
of the unit of the Union in which the respondent's employees were active. She
was the only girl who wore a union button on August 1 and the only girl who
participated in the distribution' of union literature on August 4.' Osborne ad-
mittedly saw Werner participating in the distribution of union literature. Werner
was discharged on the afternoon of August 4.
The incident assigned by the respondent as the cause of Werner's discharge
occurred on July 30.9 On that day Armand Rodriguez was picking up bottle caps
from the floor and, to attract Werner's attention so that he might hand her the
caps, lie whistled at Werner. When she failed to respond, Rodriguez grabbed
Werner's ankle. Werner "kicked" or "nudged" Rodriguez with the side of her
"In addition to other defenses , the respondent claims that it cannot be found guilty of
unfair labor practices because in October 1940 it instructed its supervisors that the em-
ployees were free to loin or not to join any labor organization , and that the respondent and
its supervisors were to maintain a neutral position in the matter . There is no merit in
this contention The instructions were given more than three months prior to the com-
mencement of the organizational activity involved herein , they were given with respect to
entirely different organizational efforts ; they were not complied with ; the iespondent's
statement of a neutral position was not, by "effective means," conveyed to the ordinary
employees. See: H. J. Ileinz Co. v. N. L. R. B., 110 P. (2d) 843, 847 (C. C A. 6), aff'd. 311
U. S 514.
7 Only about 50 or 60 of these 90 were regular employees ; the remaining 30 or 40
were temporary employees.
8 It has been noted that the male employees of the respondent were organized while the
female employees were not, and that the respondent segregated the male and female em-
ployees during the = lunch , hour for the purpose, of preventing organization of the female
employees. -
Werner and Armand Rodriguez , who were involved in the incident , fixed the date as
July 30. Weiner fixed this date with relation to a union meeting held on July 31 and her
futile attempts to call the Union's office on the evening of July 30 Osborne fixed the date
as July 31. The undersigned credits this testimony of Werner and Rodriguez and finds that
the incident occurred on July 30 . The evidence does not support the respondent 's conten-
tion that the fixing of July 30 as the date "was a studied attempt to prolong the time be-
tween the date of the kicking incident and the discharge "
4214 DECISIONS ' OF .NATIONAL' LABOR RELATIONS BOARD
foot Osborne, who witnessed this incident, told Werner, "Don't you know you
should not kick a man when he is down, it' is not ladylike." After Werner
-explained to Osborne that she/had repeatedly told Rodriguez not to whistle at
her or grab her ankle, Osborne, without further comment, walked away.10
On August 4, Rodriguez was called to Osborne's office shortly after lunch,
-here Soroko questioned him about the "kicking incident." Upon Soroko's re-
quest, Rodriguez signed,a statement prepared by Soroko to the effect that Werner
had kicked him and was about to kick him again when Osborne stopped her.
Shortly thereafter, Werner was called to Osborne's office. According to Werner,
Osborne reminded her of the "kicking incident" and then Soroko exclaimed,
"What the hell do you think this is, a Bowery, dump? You have no goddam
right to kick anybody. Do you know I can have you thrown in the jug for that?" "
Soroko added that there were plenty of-people "loyal and-satisfied," even if
Werner were not. Werner again explained that she had many times warned
Rodriguez about whistling at her and grabbing her ankle and had complained to
her foreman about it, but that the foreman apparently had done nothing to stop
,this annoyance. Soroko then recommended that Werner be discharged, and
Osborne immediately discharged her Soroko did not deny the statements
attributed to him by Werner. -
The respondent adduced some evidence calculated to show that- Werner, was
a vicious and violent person of whom the other employees were mortally afraid.
Thus, Soroko testified that he "had heard rumors" that Werner was "pretty much
hated and feared" by the other employees He admitted that most of these
rumors came to him from Osborne. He testified, however, that he had received
one phone call to the effect that the caller was afraid of Werner and that
Werner had threatened to throw acid in other employees' faces, and that on
one occasion three or four girls who were employed in the plant told him They
were afraid of Werner "because she is so big" and `•`is always threatening them
and. pushing them around." , Osborne testified that in late July Soroko told
;him that he had had reports that Werner was threatening some of the employees.
Neither Osborne nor Soroko was able to name any employees who had complaint
about being threatened by Werner or who had stated that they were afraid of
her. None of the employees allegedly threatened were called to corroborate this
testimony. Soroko admitted he had received no reports of actual assaults by
-Weiner except for the time'she had "kicked" Rodriguez Werner denied that
,she had ever threatened anybody, and that she had stated that acid would be
.thrown in their faces. She testified that none of the employees had ever asked
-her to stay away from them, that no one had ever told her about these alleged
'complaints by other employees, and that no one had warned her about her
conduct in the plant or that she might be disciplined or discharged because of
her conduct. Osborne admitted that Werner's foreman never reported to him
that Werner was making threats or assaulting other employees in' the plant,
and that he never spoke to Werner concerning' the complaints he;claimed to have
received about Werner's misconduct. -
The undersigned is unable to credit the testimony of Soroko and Osborne as
'related above. . This conclusion is required by the respondent's complete failure
10 The above findings as to the "kicking incident" are based upon the testimony of Werner
'and'Rodiiguez which, except for the date on ,which it occurred , is corroborated by Osborne's
testimony.
11 The coarseness of this rebuke-is out.of; all-proportion'.to the seriousness of the offense
-It is illustrative of Soroko 's manner and speech to the employees who were attempting to
organize the plant on many occasions ' during this period. It demonstrates the respondent's
purpose to magnify an insignicant incident into a plausible ground for Werner's discharge.
i
REVLON` PRODUCTS- CORPORATION " -" 1215
to adduce any evidence of Werner's- violent and malicious character other than
the vague and indefinite assertions of Osborne-and Soroko.
At the time of her discharge on August 4, 1941, Werner had worked for the.
respondent almost three years. During the last two years she worked in the
cleaning department and, according to her uncontradicted testimony which the,
undersigned credits, her production record was higher than any other employee
doing similar work. During all of her employment with the respondent,, she was
never reprimanded-for miscoifduct or for poor work Indeed, in December 1940,
when Soroko accused Werner of stealing merchandise, rhe. according to her
undisputed testimony. which is credited, was exonerated, ,horoko apologized for
the accusation he had' made against her, and Osborne told her that she was.,
"a good worker, and he would not like to see anything happen to anyone' who
was as loyal" as she. While there is no contention that Werner was discharged-
because of poor work or iriefliciency, Werner's good work record and the absence of
any kind of reprimand during three years of employment is highly material to
a consideration of the validity of the 'respondent's alleged reason for the dis-
charge. It is impossible for the undersigned to believe that the respondent
would, without warning, visit the extreme penalty of discharge upon an employee
of, three, year's, standing whose work record was above average merely becausei
she mildly and harmlessly kicked a fellow employee under the circumstances
as related above. •
'i
It is significant that Rodriguez admitted that he had so annoyed Werner for,
some time ; that he was not kicked hard and was not injured ; that he made,
no complaint about the matter until invited to Osborne's office and asked to sign
a statement prepared by Soroko ; that the kicking occurred on July 30 and,
nothing was done about it until August 4, after Werner had twice within four
days demonstrated that she was the only female employee in the plant who
was active in behalf of the Union."
The undersigned finds that the respondent discharged Madeline Werner on
August 4, 1941, not because she had kicked a fellow employee, but rather because,
of her membership in and activity on behalf of the Union,'and that by so discbarg.-,
ing Werner the respondent has discouraged membership in a labor organization:
by discrimination in regard to the hire and tenure of Weiner's employment.
11 Soroko and Osborne attempted to explain this delay by asserting that Osborne is with-
out authority to make a discharge without Soroko's approval "when there is an assault
involved ," and that Osborne tried to reach - Soroko when the incident occurred but was
unable to do so because Soroko was out of town Granting the truth of these assertions,
the delayed action is still not satisfactorily explained Osborne is the respondent 's produc-
tion manager with authority throughout the entire plant , and even if he' could not dis-
charge Werner, he clearly had the power to discipline employees when necessary to the
maintenance of order in the plant . Certainly he was not obligated to let go unnoticed
such a dangerous menace as Weiner is claimed to be , merely because Soroko was not avail-'
able to approve the discharge.
It is unnecessary to resolve the conflict in the evidence as to whether Werner was about
to kick Rodriguez' again when Osborne stopped'her Construing the incident in the light
most favorable to the respondent , the undersigned is-still of the opinion that the kicking'
incident was not the real reason for Werner's discharge It should be noted, however, that)
while Rodriguez ' s testimony with respect to the signing of the statement in Osborne ' s office:
is utterly confused, there is no meat whatever in the respondent's contention that Rodriguez
"continuously kept missing his cues" while attempting to "'do his bit' in his supporting
role in the drama concocted by the charging union," and that his testimony "was utterly
unreliable , lacking in forthrightness and bordering on outright falsity " The facts, die
that Rodriguez is a Pueito Rican who spoke Spanish exclusively until he came to this
country 2 years prior to the hearing The record shows to some extent, and Rodiiguez's
demeanor on the witness stand demonstrated , that the confusion in his testimony was, in
large part at least, the result of his very limited command of the English language
1216 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
George Shapiro was one of the four employees who joined the Union on Febru-
ary 19, 1941. He was on the Union's organizing committee and in that capacity
solicited 15 or 20 employees to join the Union. He was" one of the group who
.first wore a union botton in the plant on August 1, and he participated in the
distribution of union literature on August 4. Osborne admittedly saw him en,
gaging in the latter activity.
Shapiro began working for the respondent in March 1937. Early in 1940 he
was transferred to the shipping department. In %December 1940 he was made
assistant to the bead of the shipping department, which position he held until
August 14, 1941. From August 14 to October 31, 1941, when he was discharged,
Shapiro worked in various departments of the plant. The complaint alleges
that Shapiro was demoted from the shipping department to less desirable and
more arduous work, and was eventually discharged because of his union mem-
bership and activity , The respondent claims that Shapiro was transferred
from the shipping department because of an error made on August 13, and that
he was finally discharged because of his poor work record and his failure, after
warning, to improve it.
On August 13, the head of the shipping department was absent and Shapiro
was working in his place. Just before closing time, Morris Schneider, one of
the partners of the firm which does the respondent's trucking, came to the ship-
ping department to take the outgoing merchandise to the Post Office and express
office. The truck driver who picks up these packages is required to sign a so-
called "bill of lading" showing the number of packages taken by him. The
purpose of the "bill of lading" is to serve as a receipt for the merchandise taken
and to determine the truckman's fee, he being paid according to the number of
packages he handles. It is customary for one employee in the shipping depart-
ment to count the outgoing packages and call the number to another employee,
who writes the number on the "bill of lading."
On the day in question, Ray Liebowitz counted the packages and Shapiro
entered the number given by Liebowitz on the "bill of lading." After the mer-
chandise was loaded on the truck, Schneider returned to the shipping department
and told Shapiro that he had one or 'two more packages than were listed on
the "bill of lading." While Schneider and Shapiro were talking, Osborne ap-
proached them and, upon being informed of the error, instructed Schneider to
recheck the number of packages, and told Schneider that he would take care of
it the next morning. Despite the fact that both Osborne and Schneider were
aware of this error, Schneider signed the "bill of lading." Schneider testified
that on the following day, when he inquired of Shapiro what should be clone
in the matter, Shapiro told him not to say anything more about it but to correct
the error by adding an extra number of packages to the "bill of lading" for the
14th. Shapiro denied this, and testified that he explained the situation to the
head of the shipping department and told him to "take over from "there." Oii
the morning of August 14, Osborne admittedly told the head of the shipping
department to correct the error by adding two extra packages to Schneider's "bill
of lading" for that day. The undersigned credits Shapiro's testimony, and finds
that on August 14 Shapiro turned the matter over to the bead of the shipping
department and had nothing further to do with it. It is further found that
upon Osborne's instructions the error was corrected as stated above.
,On August 14, Shapiro was called to Osborne's office, where he was questioned
by Osborne, Soroko, and" Detective Bauer concerning the matter. Osborne
accused Shapiro of dishonesty because of the manner in which he handled the
error of the previous day. Detective Bauer, after questioning Shapiro, told
Soroko that he was satisfied that S.bapiro had-had no intention to steal any
REVLON•PRODUCTS CORPORATION 1217
merchandise, and Soroko, according to Shapiro's testimony which is credited,
informed Shapiro that as far as he was concerned his honesty was beyond
question, but that he "had been concerned with activities away from the place,"
that his mind had not, been on his work, and naturally his work had been
affected, and that, under the circumstances, it was not feasible to permit Shapiro
to remain in the shipping department. Osborne thereupon informed Shapiro
that he was to be transferrrd from the shipping department to the manicure
set department, and, upon Osborne's instructions, Shapiro immediately reported
to that department. This transfer, which is hereinafter found to have been
discriminatory, involved no decrease in wages.
. The respondent's contention that Shapiro was transferred from the shipping
department because of the error under discussion is not persuasive. Shapiro's
work in the shipping department had never been criticized beyond minor errors
which had been brought to his attention, and he had rfever been warned that
these or similar errors were apt to' result in his transfer from that department.
Osborne attempted to justify his transfer of Shapiro on the ground that
Shapiro demonstrated his indifference toward his work by insisting that he was
entitled to rely upon Liebowitz's count of the packages and his dishonesty by
attempting to correct the error by adding an extra number of packages to the
"`bill of lading" for the following day.13 But Shapiro prepared the "bill of
lading" in the usual fashion and from past experience was entitled to rely upon
his assistant. As to the manner in which the error was corrected, it has been
found that Osborne, not Shapiro, gave instructions to add the extra packages
to the "bill of lading" for the following day., The error, moreover, was not
serious, since it did not, and could not, affect the proper shipment of the mer-
chandise. Osborne recognized at the time that,it was not serious, for he per-
mitted Schneider to sign the "bill of lading" and take the merchandise, although
he was fully aware of the existing error. It is significant too, that Liebowitz,
who was just as responsible if not more so, was not disciplined in any way.
Osborne's explanation of this disparate treatment on the ground that he was
satisfied with Liebowitz's frank admission that be had forgotten to count two
packages is not convincing.
The undersigned finds that on August 14, 1941, Shapiro was transferred from
the shipping department because of his membership in 'and activity on behalf
of the Union.
After leaving the shipping department, Shapiro worked in the manicure set
department for about one week, and was then transferred to the filling depart-
ment. In that department, he worked on an automatic machine' where he was
required to take bottles off the machine acrd deposit them in a tray. Being
unaccustomed to this work, Shapiro's hands soon became bruised and bleeding,
which necessitated his transfer to another part of the machine where bottles
were capped. Shapiro remained on this job until his fingers healed and there-
after was transferred back and forth from one job to another. While working
on this machine, Shapiro's supervisor informed him that he was not working
fast enough and that Soroko and Osborne had stated that if his work did not
pick up within three days he would be discharged. At the end of the three
days, however, Shapiro continued on this job After about two weeks in the
filling department Shapiro was transferred to the night shift doing the same
work on the same automatic machine. About the last of August, while Shapiro
was working on the night shift, he became ill while working and, after informing
18 Osborne 's claim that Shapiro's dishonesty was further shown by his ' insistence on
,talking about "a couple" of extra packages when the final check-up showed three extra
does not merit discussion.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his supervisor, left the plant. Upon his doctor's diagnosis that he was suffering
from a nervous strain, and upon.his doctor's recommendation, and after giving
notice to the respondent, Shapiro took a week's vacation which ended` about
September 8.
While Shapiro was away from the plant on his vacation, Soroko went to his
home to inquire if he was actually ill. Shapiro's mother-informed Soroko"that
Shapiro was not well because "the job he liked was taken away from him"
According•to the testimony of Shapiro's mother, which is credited, Soroko replied,
,The job did not make him sick. It is the outside activities. This organizing
business. George is a fine boy for work but he should not have done that. His
outside activities made him sick and not the place." Shapiro returned to work on
September 8, and, after working about a week, again became ill and upon his
doctor's recommendation took another night off. On that evening Soroko again
called at Shapiro's -home. On that occasion, according to Shapiro's testimony,
which is credited, when Shapiro's mother said that "George has not been looking
well lately," Soroko replied, "There is a reason for it. He has been associating
with this union business outside of the firm, his regular duties, that is, and
naturally he looks bad." Shapiro then stated that the work he was required
to do since being transferred from the shipping department was accountable
for his physical condition, and requested Soroko to have him transferred back
to the shipping department. Soroko stated that he was unable to have Shapiro
put back in the shipping department but for him to report for work the next
morning and Soroko would see that he was returned to day work. Shapiro
reported for work the next morning. He was not assigned permanently' to the
automatic machine in the filling department, but was moved about the plant in
many sub-departments of the filling department doing whatever work no one else'
was available to do.
,,,On October 24, .1941, Shapiro was called to the office of Joseph Revson, the
respondent's treasurer and general manager. When Shapiro -reached Revson's
office, Revson told Shapiro that "there had been a sort of day by day check-up"
on Shapiro's work, and'discussed with Shapiro several complaints which Osborne
had registered with Miss Thern, Revson's assistant.
Shapiro denied that he was guilty of the conduct claimed by Osborne and the
evidence adduced at the hearing does not support the charges of inefficiency
brought by Revson against Shapiro on October 24. Revson testified that he dis-
cussed- several "shipping miscounts" with Shapiro, but there is no evidence of
any, such miscounts except' the one on August 13 discussed above" Revson'
informed Shapiro that he had wasted time by leaning on the "hopper support"
of his machine on four occasions' when the machine was running" Shapiro
admitted that he probably leaned on the hopper when the machine was running,'
but at times when no bottles were coming through, and hence no time would be
wasted. There is no evidence that Shapiro did waste working time in this
manner. Revson 'told Shapiro that during the ' week that he worked in ' the
manicure set department he worked "too slow." There is no evidence to support
14 Revson admittedly failed to ask Thern about the details of the alleged miscounts He
testified that "inasmuch as she is my, assistant and she is familiar with those things, the,
very fact that she said there were mistakes in shipping would be enough for me to accept
her word."
1" The undersigned does not credit Revson's testimony that he checked with Thern to 'see
if the machine was-in operation on these occasions It is peculiar, to say the.leasf, that
he would unquestionably accept Thorn's word about the "shipping miscounts" -(see note
14, supra) but make specific inquiry, about the, operation of the machine at the times in
question . . - .
REVLON PRODUCTS CORPORATION 1219
this charge, the only evidence on the point being the testimony of'Shapiro, which
is credited, that his supervisor in that department had never criticized his work..
Revson pointed out that Shapiro had twice hurt his fingers because of his care-
lessness. Shapiro admitted that his fingers became so sore they had to be
bandaged, but there is no evidence that this was the result of Shapiro's care-
lessness.. Revson also, charged Shapiro with pretending to-be ill when in
fact he was, not, but the falseness of this accusation is attested to by the fact
that Shapiro was given full pay for the time he was absent from work on those
occasions, which admittedly is done only upon production of a doctor's certifi-
cate Revson also accused Shapiro of wasting time by clowning and laughing
with other employees. Revson could not name any employees with whom
Shapiro was "clowning and laughing" ; the, information given Revson by Thern
did not include the names of such persons, and Revson admittedly made
no inquiry about it. Shapiro denied the charge ; the respondent offered no evi-
dence to support it.
At the conclusion of the inte,view, Revson informed Shapiro that he would
be given one week to,improve his work record and that if he failed to do so he
would be discharged. According to Shapiro's undisputed testimony, which is
credited, during the following week Shapiro's foreman told him there was no
need for him to work so hard' because he would "probably be fired Friday any-
way." At the end of the following week, Osborne informed Revson that Shapiro's
work had not improved, whereupon Osborne, acting upon Revson's instructions,
discharged Shapiro.
The evidence fails to support the respondent's contention that Shapiro was
discharged because of inefficiency or poor quality of work. The undersigned
is convinced that Shapiro was transferred from the shipping department because
of his membership and activity in the Union, and that by close scrutiny of his
work the respondent built up a mass of alleged deficiencies which it failed to
prove at the hearing, but which it thought would justify its discharge of'Shapiro.
The undersigned finds that by transferring Shapiro from the shipping depart-
ment on August 14, and by discharging him on October 31, 1941, because of his
membership and activity on behalf of the Union, the respondent has discouraged
membership in a :.labor organization by discrimination in regard to the hire and
tenure of Shapiro's employment. -
IV.' THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COIIMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and,
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac•
tices, the undersigned will recommend that it cease and, desist therefrom' and
take certain affirmative action designed to effectuate the policies of the Act.-
Having 'found that the respondent discharged Madeline Werner and transferred
George Shapiro from the shipping department and subsequently, discharged him
and thereafter refused to reinstate them' because of their membership in and
activity on behalf of the Union and because they engaged in concerted activities
for the purpose of collective bargaining and other mutual aid and protection,
it will be recommended that the respondent offer Werner immediate and full
521247-43-vol. 4 8--7 8
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,reinstatement to her former or substantially equivalent position, and offer
Shapiro immediate and full reinstatement to his former position in the ship-
ping department or to a position substantially equivalent thereto ; and that the
respondent make Werner and Shapiro whole for any loss of pay they have suf-
fered by reason of their discharge by payment to each of them of a suin equal
to that amount which he or she would normally have earned as wages from.
the date of their respective discharges to the date of the respondent's offer of
,reinstatement, less his or her net earnings,16 during said period.
Upon the basis of the foregoing findings of fact and upon the entire record of
the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. Wholesale & Warehouse Workers Union, Local 65, affiliated with the Con-
gress of Industrial Organizations, is a labor organization, within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Made-
line Werner and George Shapiro, thereby discouraging membership in the Union,
the respondent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) and (3) of the Act.
3. 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.
4. 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 under-
signed recommends that the respondent, Revlon Products Corporation, New
York, New York, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Wholesale & Warehouse Workers Union,
Local 65, affiliated with the Congress of Industrial Organizations, or in any
other labor organization of its employees, by discriminating in regard to the
hire or tenure of employment or any terms or conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights 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 undersigned finds will effec-
tuate the policies of the Act:
(a) Offer to Madeline Werner immediate and full reinstatement to her former
or substantially equivalent position, and offer George Shapiro immediate and full
"By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the , respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L R. B . 440., Monies
received for work performed upon Federal , State, county , municipal , or other work - relief
piojects shall be considered as earnings . See Republic Steel Corporation v N L. R B.,
311 U. S. 7.
REVLON PRODUCTS CORPORATION 1221
reinstatement to his former position in the shipping department or to a position
substantially equivalent thereto without prejudice to their seniority or other
rights and privileges ;
(b) Make whole Madeline Werner and George Shapiro for any loss of pay
they may have suffered by reason of the respondent's discrimination by pay-
ment to'each of them of a sum of money equivalent to that amount which he or
she would normally have earned as wages from the date of their respective
discharges to the date of the respondent's offer of reinstatement, less his or her
net earnings" during such period:
(c) Post immediately in conspicuous places in its plant at New York, New York,
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 recommended in paragraphs 1 (a)
and (b) of these recommendations that it cease and desist; (2) that the respond-
ent will take the affirmative action set forth in paragraphs 2 (a) and (b) of
the recommendations; and (3) that the respondent's employees are free to_
become or remain members of Wholesale & Warehouse Workers Union, Local
65, affiliated with the Congress of Industrial Organizatibns ; and that the
respondent will' not discriminate against any employee because of membership
in or activity on behalf of that organization ;
(d) Notify the Regional Director for the Second Region in writing within
twenty (20) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply herewith.
It is further recommended that unless on or before twenty (20) days from,the
receipt of this Intermediate Report; the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring respondent to take the
actions aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-any party may within
thirty (30) 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 Intermedi-
ate Report or to any other part of the record or proceeding (including rulings
upon all motions or objections) as he 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 twenty (20) days
after the date of the order transferring the case to the Board.
WmLIAM F, GuFr1 x, Ja.,
Trial Examiner.
Dated September 9, 1943.
17 See footnote 16, supra.