The Rollash Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1961

133 N.L.R.B. 464 (N.L.R.B. 1961)

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such an impairment of an employee's freedom that, in my view, it is
a travesty to condone the imposition of such device when the Act
forbids the requirement of literal membership.
In view of the foregoing, I am satisfied that the reliance of the
General Counsel and the UAW on Public Service Company of Colo-
rado, 89 NLRB 418, and American Seating Co., 98 NLRB 800, is
misplaced. For, unlike the instant matter, both cases involved a valid
agreement, requiring membership as a condition of employment,
which was protected under the first proviso to Section 8(a) (3) ; and
neither case involved a "right-to-work" jurisdiction. Significantly,
in both Public Service and American Seating, no legal impediment
existed to preclude the parties from entering into the contracts re-
quiring all employees to be union members, and they made such con-
tracts. Thus the choice extended to the employees there, between
membership and support which did not involve membership, is wholly
different from the "Hobson's choice" which the UAW would extend
to the employees here.
Based on the foregoing considerations, I conclude that the agency-
shop clause concerning which UAW requested GM to bargain is,
under the National Labor Relations Act, illegal in Indiana, and that
GM was under no obligation to negotiate concerning such a clause
with UAW. Accordingly, GM not having violated the Act as alleged,
the complaint should be dismissed. ,
The Rollash Corporation and District 65, Retail , Wholesale and
Department Store Union, AFL-CIO. Cases Nos. 2-CA-7534 and
0-CA-7626. September 29, 1961
DECISION AND ORDER
On April 3, 1961, Trial Examiner Thomas A. Ricci issued his In-
termediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices and recommended that the
complaint be dismissed with respect to such allegations. Thereafter
the Respondent filed exceptiohs to the Intermediate Report.
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel
[Members Rodgers, Fanning , and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no- prejudicial error was committed.
133 NLRB No. 54.
THE ROLLASH CORPORATION 465
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with certain modifications in the remedy as here-
after set forth.
THE REMEDY
The Trial Examiner having found that the Respondent discrimi-
nated against certain employees with regard to their hire and tenure,
recommended that these employees be given backpay.l
We do not agree with the Trial Examiner that Beatrice Fox is en-
titled to backpay. On August 22, 1960, she called the Respondent's
president and informed him : "I don't want to have anything to do
with the Union. I don't want any violence. My husband said it is
not safe . . . I don't want to work any more." On the same day,
Fox affirmed this statement in a letter addressed to the Respondent
which stated in pertinent part: "I have left my job on my own accord."
We find nothing in the foregoing to support the Trial Examiner's
conclusion that Fox was coerced into abandoning her rights to remedial
benefits. She may have chosen to disassociate herself from the at-
mosphere which existed in the shop on the day she was laid off, but
her choice was a free one. The mere fact of discriminatory layoff in
the circumstances here cannot be said to have inevitably caused her
to abandon her right to reinstatement. Accordingly, we will not
order that the Respondent make whole Beatrice Fox
The Trial Examiner recommended that Maria Rodriguez be granted
backpay for the period from August 22 to November 10, the date of
her reinstatement. However, on September 27, 1960, a registered
letter was sent to Rodriguez at her last known address informing her
of the offer of reinstatement. This letter was returned by the post
office undelivered on September 29, 1960. On October 10, Rodriguez
appeared at the Respondent's place of business, informed the Re-
spondent's president that she had heard of the offer of reinstatement,
and was ready to go to work. She was refused employment as having
elected to return at too late a date. Ultimately, on November 9, the
Respondent sent Rodriguez a telegram to return to work and she was
reemployed the day after.
We find that the letter offering the reinstatement sent by registered
mail and returned undelivered by the post office tolled the backpay
from September 29, the date on which delivery was attempted by the
1 By the time of the hearing, all of the employees either had been reinstated or had
failed to respond to Respondent 's offer of reinstatement.
'In connection therewith it should be noted that although Fox was discharged on the
19th and did not write the letter abandoning the job until the 22d, there were no work-
days between the 19th and the 22d and, accordingly , there would be no backpay for
that period.
624067-62-vol. 133-31
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
post office, until Rodriguez appeared at the Respondent's place of
business requesting reinstatement on October 10, 1960.3 Accordingly,
the recommendation of the Trial Examiner is amended to delete there-
from backpay from September 29 to October 10, 1960.4
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Rollash
Corporation, Brooklyn, New York, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discharging or otherwise discriminating against employees
because of their exercise of the right to self-organization or to join
labor organizations.
(b) Refusing to bargain collectively with District 65, Retail,
Wholesale and Department Store Union, AFL-CIO, as the exclusive
bargaining representative of all employees of the Respondent Com-
pany in the appropriate bargaining unit with respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment.
(c) Prohibiting its employees from discussing union activities on
their own time on company premises.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right of self-organization, to form
labor organizations, to join or assist any labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act, or to refrain from any or all such activities except to the extent
that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with District 65, Retail,
Wholesale and Department Store Union, AFL-CIO, as the exclusive
representative of all employees in the appropriate union, and embody
any understanding reached in a signed agreement.
° See Jay Company, Inc., 103 NLRB 1645, 1647.
4 We find without merit the Respondent 's contention that Elsie Raider abandoned both
the office work she had performed before the discriminatory discharge and the pay rate
she had earned in her combined office-factory job. We find that her one remark that she
did not want to perform the office work was the result of badgering by relatives of the
Respondent 's president , and did not constitute an election to permanently abandon her
claim
THE ROLLASH CORPORATION 467
(b) Offer to Elsie Raider immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to her
seniority or other rights and privileges previously enjoyed, in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(c) Make whole the following named employees for any loss of pay
they may have suffered by reason of the discrimination against them
in the manner set forth in the section of the Intermediate Report en-
titled "The Remedy."
Clara Schechter Maria Rodriguez
Nellie Morrow Elsie Raider
Catherine Kearney Kate Goldberg
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and all
records necessary to analyze the amounts of back-pay due under the
terms of this Order.
(e) Post at its plant in New York City copies of the notice attached
hereto marked "Appendix." 5 Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being duly
signed by an authorized representative of the Respondent, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to be sure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of the receipt of this Order, what steps
it has taken to comply herewith.
IT IS FURTHER ORDERED that to the extent that the complaint alleges
an unlawful discrimination with respect to Gertrude Koetzing, it be
dismissed.
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership by any of our employees
in District 65, Retail, Wholesale and Department Store Union,
AFL-CIO, or in any other labor organization, by discharging, or
in any other manner discriminating against any employee in re-
gard to his or her hire, tenure of employment, or any other term
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or condition of employment, except as authorized by Section
8(a) (3) of the National Labor Relations Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT prohibit our employees from discussing union
activities on their own time on company premises.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
join or assist District 65, Retail, Wholesale and Department Store
Union, AFL-CIO, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with District 65,
Retail, Wholesale and Department Store Union, AFL-CIO, as
the exclusive bargaining representative of all employees in the
following bargaining unit with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and,
if an understanding is reached, embody such understanding in a
signed agreement . The appropriate unit is :
All employees in our plant, excluding the bookkeeper, the
father, brother, and father-in-law of the president, and all
supervisors as defined in the Act.
WE WILL offer Elsie Raider immediate and full reinstatement
to her former or substantially equivalent position, without preju-
dice to her seniority and other rights and privileges.
WE WILL make whole the following employees for any loss of
pay they may have suffered as a result of the discrimination
against them.
Clara Schechter Maria Rodriguez
Nellie Morrow Elsie Raider
Catherine Kearney Kate Goldberg
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization.
THE ROLLABH CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
THE ROLLASH CORPORATION 469
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly designated
Trial Examiner in New York City on February 20 and 21, 1961, on complaint of
the General Counsel and answer by The Rollash Corporation, herein called the
Respondent or the Company. The issues litigated were whether the Respondent
had violated Section 8(a) (1), (3), and (5) of the Act.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Rollash Corporation is a corporation duly organized and existing under the
laws of the State of New York, and it maintains its principal office and place of
business in the Borough of Brooklyn, in the city and State of New York. At all
times material herein it was engaged at this plant in the manufacture, sale, and
distribution of eyelash curlers, general cosmetics, and related products. During the
past year, in the course of its business operations, the Respondent caused to be
manufactured, sold, and distributed at its Brooklyn plant products valued at $250,-
000, of which products valued in excess of $50,000 were sold and shipped by it
from said plant directly to customers located in States of the United States other
than the State of New York.
I find that at all times material herein the Respondent has been and is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
District 65 , Retail, Wholesale and Department Store Union , AFL-CIO, herein
called the Union , is a labor organization within the meaning of Section 2 ( 5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. A picture of the case
The Union was first recognized as majority representative among the Respond-
ent's shop employees in 1958, when the parties made a 2-year contract expiring,
by its terms, on July 11, 1960. During the summer of that year representatives of
the Union met with the owner of the Company six or seven times in an effort to
reach agreement upon a new contract; they were unsuccessful. It is an allegation
of the complaint now that in the course of those meetings the Respondent refused
to bargain with the Union as majority representative of its employees and thereby
violated Section 8(a) (5) of the Act.
During the negotiation meetings, starting back on June 3, the Respondent advised
the Union that it was deeply concerned with excessive production costs at the
plant; it explained that what manufacturing operations were performed there could
be achieved more economically by contracting out the work to other companies.
Purely for economic reasons, a expressly conceded by the General Counsel, in the
month of July, on the very day after the union contract expired, the Respondent
arranged to have virtually all the manufacturing work previously performed by its
shop employees made by an independent contractor. On August 19, 1960, the
Respondent discharged 7 of the approximately 15 employees then at work. While
conceding that a substantial reduction in the overall complement was eventually to
be expected in consequence of the discontinuance of production work, the complaint
alleges that the discharge of these seven employees, coming at the time it did, was
motivated by antiunion animus and therefore constituted a violation of Section
8(a) (3) of the Act.
The discharged women, and some others, picketed the plant for some time after
August 19. A number of the discharged employees were recalled to work by the
Respondent about 6 weeks later; several others offered to return, but were either
not restored at all or were taken back some time later. Further, as to two of the
employees who returned to work sometime in October or November, it is alleged
in the complaint that for certain periods after their return the Respondent illegally
discriminated against them by not giving them substantially the same employment
they had enjoyed before these events. The refusal to take back employees who
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,chose to abandon the strike and the failure to restore a few to work at least equiva-
lent to their earlier occupations, are also alleged to be violations of Section 8(a) (3)
,of the Act.
The Respondent, in defense, contends that it never refused to bargain with the
Union. At the hearing, and in part of its pleadings, the Respondent also asserted
,that the employees quit, that they were never discharged. Moreover, as an overall
justification, the Respondent claims that whatever loss of work resulted to any and
all of these employees, it was occasioned entirely by the economically dictated neces-
sity of contracting out the work they used to do.
B. Appropriate unit and majority status
The Respondent's ultimate and final refusal to accord the Union recognition as
representative of the employees and to bargain with it as required by the statute, is
said, in the complaint, to have occurred on July 27, 1960. The threshold findings,
requisite to any finding of a violation of Section 8(a)(5) are, therefore, appropriate
bargaining unit composition and majority status of the Union. The expiring con-
tract merely provided the Respondent would recognize the Union as representing
"its employees."
The complaint describes the bargaining unit as "all employees of Respondent
employed at its plant exclusive of the bookkeeper, the father, brother, and brother-
in-law of the president, and all supervisors as defined in the Act." The Respondent's
answer to the complaint does not take issue with this allegation.' Exclusion of the
bookkeeper-May Strizik-appears quite correct because a copy of the expired
contract, received in evidence, shows her specific exclusion by name. At the hearing
Bernstein seemed to raise a question on whether exclusion of his father, his brother,
and his father-in-law was appropriate. His father and father-in-law are elderly
gentlemen, 87 and 75 years old, respectively; they do regular work, but are afforded
early departure for rest. In his testimony Bernstein said that there had been no
oral exclusion of his three relatives at the time the 1958 contract with the Union was
made. To the contrary, however, his earlier affidavit to a Board agent reads in part:
Before the execution of the Agreement the Union orally excluded from the
contract my father, Herman Bernstein, who does general hand production
work; my father-in-law Isidor Lazar, who also does general hand production
work; Samuel Strizik, who does shipping and drives the employer's station
wagon; Annabelle Fuller Gladden, part time production worker; Fred Ross,
machinist and foreman; and Hyman Lazar, machinist and foreman.
The record also shows that, despite a union-security clause in the contract and the
fact virtually all production and maintenance employees had become members of
the Union, none of Bernstein's relatives had been required to or had joined the
Union. In the total circumstances, I find that Herman Bernstein, Edward Bernstein
(the owner's brother), and Isidor Lazar were not included in the bargaining unit
on July 27, 1960.
The General Counsel contended at the hearing that a number of other employees
who were at work on July 27 must not be counted, for various reasons, as included
in the unit. One of these is Hyman Lazar. Three employees testified respecting
Lazar's duties and authority. Kate Goldberg said: "He is the foreman. He gives
us work and he takes the work, he directs us where do we go from time to time,
if we are on the table or if we are on the machines." She added Lazar is in charge of
the plant when Bernstein is out; that she sees Lazar if she needs anything or wants
to leave early. Employee Elsie Raider said that Lazar places her on one machine
or another, that he supervises the factory. And Nellie Morrow said: "Our foreman
[Lazar] would place us where he thought he needed work."
It also appears that Lazar generally takes care of a'variety of duties; according to
Bernstein he distributes the work, works on tables himself, receives merchandise,
makes nonmechanical repairs, tells the girls what to do, and moves them about the
'Irving Bernstein, the owner and president of the Respondent, appeared at the hear-
ing to defend himself He stated he is a licensed lawyer in the 'State of New York, but,
because he has always been a businessman, has had very little experience in legal prac-
tice To assure his understanding of the unit issue in the case, I asked him the follow-
ing question on the record regarding the pleadings:
TRIAL EXAMINER: It was your intention not to question the correct grouping of
the employees, is that right?
Mr. BERNSTEIN : That's correct.
THE ROLLASH CORPORATION 471
plant . Bernstein added that Lazar is "in charge" when he is absent . It does not
appear that Lazar has authority to hire or discharge people, but he is paid weekly
without punching a timeclock, at a rate of at least $160 weekly. The operators
generally earned about $65 weekly on an hourly basis. On this evidence, and in
view of his agreed exclusion from the expired contract as "machinist and foreman,"
I find that Hyman Lazar is a supervisor within the meaning of the Act and therefore
excluded from the bargaining unit.
I also find that Frederick Ross, whom Bernstein also described as "machinist-
foreman ," and who was excluded from the expired contract , is a supervisor within the
meaning of the Act and therefore excluded from the bargaining unit . He too does
not punch the timeclock and is paid $ 160 weekly . He said he does regular work and
also "sets up" the work for other employees, and regularly substitutes for Lazar "in
charge" of the plant in the latter's absence . He specified this happens "sometimes
once a week or twice a week," and that , while not throughout the year, this con-
dition existed also in 1960.
Relying primarily again upon Bernstein 's earlier affidavit stating the agreed ex-
clusions of 1958, the General Counsel also urges exclusion from the bargaining unit
now of Samuel Strizik , the shipping employee and driver , and Annabelle Gladden,
part-time production worker . I deem it unnecessary to decide whether Samuel
Strizik or Gladden should be counted in the bargaining unit.
On July 27, 1960, exclusive of President Irving Bernstein , 22 persons worked in
the Respondent 's plant. These included May Strizik , the bookkeeper , Herman Bern-
stein, the father , Isidor Lazar, the father -in-law, Edward Bernstein , the brother, and
the supervisors , Hyman Lazar and Ross. The total number of employees possibly
included in the unit thus reduces itself to 16. The record shows without question
that of these, nine had either become union members or had signed applications for
membership by July 27. Accordingly I find:
The following employees of the Respondent constituted on July 27, 1960, a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act : all employees , excluding the bookkeeper , the father , brother, and
father-in-law of the president , and all supervisors as defined in the Act.
I also find that on July 27, 1960 , the Union represented a majority of the em-
ployees in the above -described appropriate bargaining unit, and that at all times
material herein it was the exclusive representative of all employees in that unit for
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
C. The refusal to bargain
A fair appraisal of the Respondent's defense to the refusal-to-bargain charge, and
an understanding of the discrimination in employment that befell a number of em-
ployees, requires appreciation at the outset of the nature of the Respondent's oper-
ations and of the important economic development that occurred in the summer of
1960 The Company does both a manufacturing and a distribution business. It
handles essentially cosmetic products such as eyelash curlers, pallet eyelash shadows,
pallet lipstick, rubber refills for these things, eye brushes, mascara and mascara
refills, and eye creams. Many of these articles are manufactured for the Company
by other companies, which do this under contract. The Respondent then ships the
products to customers who buy directly from The Rollash Company. Other products,
which are assembled with component parts, are manufactured in part by contractors
and in part in the Company's plant. In the summer of 1960, it appears that the only
parts which were manufactured in the plant itself were certain portions of an eyelash
curler which the Respondent sold in very large quantities. About 10 or 12 employees
produced these parts on machines, and then assembled the curlers by combining
both the parts produced there and others received from outside contractors Appar-
ently over 10,000 eyelash curlers a week were made and shipped to customers by
the Company.
Bernstein testified, without contradiction, and his testimony was supported by one
Panfili, the production manager of a company called Precision Attachments, that
for some time the two had talked of the possibility of Precision Attachments manu-
facturing all parts of the eyelash curler for the Respondent. It seems the contract-
ing company, for reasons not truly pertinent to this case, felt it could produce the
parts then being made by the Respondent at a considerably lesser cost. In any event,
it is clear that on July 12, the day after the union contract expired, these two men
came to a final agreement, always oral, that the contractor would thenceforth make
all the curlers-including manufacturing all the parts and total assembly-at its
shop by contract, and that the Respondent would discontinue making any parts
at all.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After serving notice upon the Respondent to forestall automatic renewal of its
contract, the Union mailed to Bernstein, on or about May 11, a written statement of
its economic demands for a new contract. The first meeting took place on June 3
in the Company's office. Present, in addition to Bernstein, were two union
organizers-Bellamare and Ortiz-and two employees. There was some discussion
of the demands, Bernstein made some notes, and the parties agreed to meet again
soon.
They met again on June 19, again in the Company's office and again with the
same people present. Bernstein explained he could not yield to the economic
demands, because business was bad. He said he would give what he had offered
the year before but could do no better. In the course of the discussion Bernstein
found occasion to say he could not compete with others, and that the parts he was
then manufacturing could be bought at lesser cost from other manufacturers. Bella-
mare recalled Bernstein saying he would give the work out to contractors. In any
event, at that meeting, Bernstein offered a $4 weekly raise to the Union, to be dis-
tributed part as direct money increase to each employee weekly and part as an in-
creased contribution to the welfare fund administered by the Union pursuant to
contract. The parties were unable to agree, and Bellamare said he would ask the New
York State Board of Mediation to arrange a conference to assist.
There was a brief meeting on or about June 28 or 29 devoted primarily to resolve
a grievance over the discharge of an employee. The Union was satisfied and Bern-
stein said they would meet again the following week to discuss the possibility of a
new contract.
On July 8, Bernstein met with Bellamare and Ortiz at the office of a Miss Robbins,
a mediator of the New York State service. Present also again were two employees.
There was some discussion of the terms of a new contract, but little was accom-
plished. Bernstein had recently undergone an ear operation and requested a 30-day
postponement because of the necessity for him to recuperate. It was so agreed.
The final scheduled meeting took place again at the office of Miss Robbins on
July 27. The same union organizers met with Bernstein; this time it appears only
one employee was in attendance. Both Bellamare and Bernstein testified as to what
was said at this meeting. According to Bellamare: ". . . Mr. Bernstein came in and
he said he came in just to be nice to Miss Robbins because he said the Union doesn't
represent his workers no more, he don't have no contract, and he just don't-he is
in the process of giving his work out on contract; that he don't have to negotiate
with us any more; that he probably would close his plant and make a warehouse
out of it." Bellamare clearly testified that Bernstein at no time during any meetings
raised any question as to the Union's continuing majority representative status among
the employees. He did say, on July 27, according to Bellamare, that the Union did
not "represent the people," but, as the organizer testified: ". . . he said on the basis
he didn't have no contract with us, he didn't have to negotiate with us."
Bernstein as a witness did not contradict the testimony of Bellamare attributing
this language to him. He simply said he told the Union at that meeting that he had
contracted out the work, that he would no longer produce it himself, and that he
would just finish up what was left in his plant.
The union representatives last approached Bernstein for bargaining purposes, when,
at 9 a.m. on August 17, three of its organizers appeared at the plant. At a union
meeting the evening before it had been decided to call on the Company in an effort
to resolve whatever differences there were between them. Bellamare, Ortiz, and
Daswell, the three organizers, entered the plant through the shop door, directly into
the area where the employees were at work on their machines or assembly
tables. With hardly any words, Bellamare waved the women to follow him and the
other representatives into Bernstein 's office. At that moment there were at work
approximately 10 women employees and 3 or 4 men. Six of the girls, all members
of the Union, followed the union representatives into the office.
Upon seeing them enter in such a large group, Bernstein became excited and, ac-
cording to Bellamare's testimony, said: "I don't have no contract with you. You
don't represent nobody. Get out of here. I'm going to call the police department."
Bellamare said he then told Bernstein ". . . we want to resolve the contract. We
want to negotiate a contract with you." In the excitement, Bernstein told Foreman
Ross to check the timecards of the girls immediately because they had left their
work "while on the clock." The foreman did this. Bernstein also telephoned the
police, who arrived in a very few moments.
Apparently incensed at the peremptory conduct of the union representatives, Bern-
stein , while waiting for the police to arrive, took a sheet of paper on his desk and
wrote on it: "We,are discontinuing our operations. Do not report for work after
THE ROLLASH CORPORATION 473
August 19, 1960 112 Bernstein refused to give a copy of that notice to the organ-
izers, and it was posted on the plant bulletin board immediately thereafter. It
remained there until sometime Thursday, the next afternoon.
Again Bernstein did not deny telling the union representatives they no longer
represented the employees because the contract had expired. His only testimony
relating to the arrival of the union agents was that they said they wanted "to have
a showdown," and that he told them in response: ". . . as a result of this violence,
that the factory would be unsafe to work in, and that I was putting a notice on the
bulletin board." He said they falsely accused him of failing to appear at the
State mediation office the night before and asked him for a copy of the notice he
wrote, which he refused to give.
The police arrived in a matter of minutes, matters cooled, and, with their urging,
organizers and employees left the building. In a short time, on the sidewalk, the
union officials told the girls to return to work immediately. They did so.
Immediately upon departure of the union people from his office, Bernstein tele-
phoned the mediation service, was told no fixed appointment had been scheduled,
and in a few moments followed the organizers to a nearby restaurant where he pro-
tested to them he had been right and that there had been no appointment he had
failed to attend.
The normal payday for the employees was Friday, and the workweek for which
they normally received payment was the week ending Thursday evening. On August
19, all those employees who had been in Bernstein's office on Wednesday were paid
as usual, but with the addition of a sixth workday, Friday. They all left and, when
they returned Monday morning remained on the sidewalk milling about They
picketed the plant thereafter for varying periods.
Bellamare also testified that he requested Miss Robbins, even after August 17, to
arrange further meetings with Bernstein to continue negotiations, but that none was
ever held. It does not appear that any written notices were sent by the mediation
services to either party, but Bernstein himself admitted that on August 18 and again
on August 22, Miss Robbins telephoned him and said the attorneys of the Union
wanted to meet with him at 'the mediation board. Bernstein unequivocally conceded
that on each occasion he declined the invitation.
The facts of this case could suggest more than one theory of illegal conduct by
the Respondent in violation of Section 8(a) (5) of the Act. On July 12, the day after
expiration of the last contract, and at a time falling between the two most important
meetings between the parties, Bernstein contracted away virtually all the work per-
formed by the bulk of the employees represented by the Union. Although he had
told the union representatives there was such a possibility, it seems quite clear this
was a unilateral action without percise advance notice to the Union. In a real sense
this action removed much of the substance of what the Union could bargain about
and in fact caused a loss of employment by the employees named in the complaint.
The General Counsel's position is, however, that the act of contracting away the work
was not illegal; in terms of a remedy sought, the General Counsel also stated directly
he did not request that the Respondent be ordered now to discontinue the subcon-
tracting arrangement and to restore the work to its own plant.3 The scope of the
2 At the hearing Bernstein said he recalled having inserted the word "temporarily" in
the notice also. Several of the employees who later saw the same notice posted on the
bulletin board for more than a day testified that the word "permanently" appeared on It
instead As the notice disappeared the day after it was posted, and in view of tile un-
certainties both in the oral testimony of the girls and of Bernstein himself at the hearing
6 months later, and the fact Bernstein had indeed agreed to have all work done else-
where, I believe the best evidence of precisely what appeared on the notice is found in
Bernstein's affidavit to a Board agent, dated only 12 days after the event, in which be
stated the phrase to have been as set out above here In any event, as will appear later,
it is clear the employees were in fact discharged on August 19, for Bernstein unequivocally
conceded as much at the hearing.
3 That the act of giving away the work is not to be deemed an element of proof in the
refusal to bargain allegation , is also Implicit in the Regional Director's refusal to issue a
complaint on a subsequent charge by this same Union. In direct consequence of the new
arrangement to have the work performed by the Precision Attachments Company, work
schedules were reduced in the Respondent's plant from 5 to 3 days weekly in November,
wage rates were reduced in December, and again the following January . This reduction
of hours and wages was the basis for a charge filed by the Union on January 25, 1961
(Case No 2-CA-7782), alleging unlawful discrimination in employment. By letter dated
February 21, 1961 , the Regional Director advised the Charging Union that he would not
proceed to issue any complaint in that case.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
illegality charged here, therefore, is strictly a refusal to negotiate with .the Union
concerning conditions of employment, entirely apart from the Respondent's action
in subcontracting away its work. The General Counsel also specified that, with
respect to this aspect to the case, the only remedial action sought was an order
to the Respondent to bargain with the Union upon request.
There is direct and uncontradicted evidence that Bernstein literally refused to
bargain with the Union. Both on July 27, when he last appeared at the State media-
tion service, and in August, when the union representatives came to his office for a
"showdown," he said that with the old contract expired he was no longer obligated
to deal with the Union. He did not contradict Bellamare's clear testimony as to
these direct statements of position by him and I therefore credit the union repre-
sentative.4 Employees there were still at work when he so summarily refused to
accord their chosen bargaining agent that recognition which the statute dictates.
He never raised any real issue as to the Union's continuing majority status.5
The evidence does not prove that Bernstein refused or neglected to attend a
scheduled meeting at the office of the State mediator the day before August 17,
as Bellamare accused him in his office the next morning. Speak of it they did,
however, and Bernstein's awareness that the Union had such steps in mind is evi-
denced without question by his own conduct in telephoning the mediation service
later that morning and telling the organizers that he had not in fact failed to appear.
With this as background, Bernstein's further admissions at the hearing that the
very next day, about August 18, and again 2 or 3 days later, Miss Robbins of
the State mediation service called him and told him the Union was requesting a
further bargaining conference which he declined, are tantamount to literal admissions
of a refusal to meet with the Union and to bargain.
There is much to indicate Bernstein may have believed that because he had
agreed on July 12 with Precision Attachments to contract out the bulk of the work
theretofore performed by the female employees in the plant, there was no longer
any obligation upon him to deal with the Union. And he might have been correct
if in fact as of that very day all the work had been removed from the plant, and
there really was nothing to do by any of the employees previously represented by
the Union. Such a conclusion might well follow from the fact the General Counsel
concedes the contracting out of the work was economically dictated, was not
unlawful, and was not a unilateral action now sought to be remedied by an affirmative
order to restore the work to the Respondent's plant. Such however, was not the
case, on Bernstein's own admissions.
The Respondent has always done a general shipping and distribution business
apart from manufacturing of parts in its own plant. It was doing this at the time
of the events and continues to do so now. Moreover, despite the arrangement
to have eyelash curlers made by subcontract, there was work still to be performed'
in the plant, if only to "finish off," as Bernstein said, the remaining parts then in
production. Bernstein said that as of August 19 there remained 3 or 4 weeks' work,
and even more, still to be performed by his direct employees. Certainly, therefore,
there can be no justification for the direct refusal to discuss working conditions
with the Union while there was work available. And the proper subjects for col-
lective bargaining may well have included not only the question of the order of
layoff in the event of a discontinuance of production operations, or possible matters
of severance pay, but also the possibility the Union might, once advised of the finality
of the contracting out arrangement, have attempted to prevail upon Bernstein again
to make the $4 weekly offer he had made in June, and possibly restore the work to
this plant and to these employees. All these possible resolutions of the dispute
between the Company and the Union Bernstein precluded by his refusal to discuss
matters with the Union after he had arranged to contract out. This, the Board
has held, is literally a violation of Section 8(a)(5) of the Act, and I so find.6
* In response to the critical refusal to bargain allegation of the complaint, the Respond-
ent stated in its answering pleading: "On July 27, 1960, after six (6) meetings with
representatives of District 65, the employer discontinued bargaining after computing
that it was more economical to contract out the remaining portions of this product . "
6'Compare the situation where an employer in good faith questions a union's majority
status and thereby properly puts in issue the presumption of continued majority status
once shown to have existed. Celanese Corporation of America, 95 NLRB 664
6 Bickford Shoes, Inc., 109 NLRB 1346 ; Brown Truck and Trailer Manufacturing Com-
pany, Inc., at al., 106 NLRB 999. For a particularly clear statement of rationale, see-
Trial Examiner Somers' explanation in Industrial Fabricating Inc, et al, 119 NLRB 162,
at pages 189-190.
THE ROLLASH CORPORATION 475
In concluding that Bernstein refused to deal with the Union , I do not rely upon
the fact that he had the three union organizers ordered out of his office on August 17.
It is true he there reiterated his underlying attitude towards the Union generally,
a position not available to him in law. But I think , in the total circumstances of the
moment, no illegal motive can be attached to his having called for the police. The
organizers took it upon themselves to stop operations in the plant without notice,
highhandedly waved the bulk of the employees into the office , and, in effect , created
a disturbance hardly conducive to calm and productive labor relations . This was
not the type of conduct the statute was intended to protect on the part of union
agents, even when authorized to speak on behalf of an accredited majority
representative.
Bellamare attempted at the hearings to justfy his methods that morning on the
ground that he was only seeking to trace down a rumor, reported to the Union
the night before by the employees , that the Company had announced a complete
shutdown of the plant. He even said that when the three organizers arrived it
was the employees who said : "Let's go and see the boss and find out if we are going
to be let go tomorrow or Friday ." The evidence does not support him in either
respect. In Bernstein 's office he admitted saying he wanted to negotiate a contract.
Three of the employees-Goldberg, Kearney, and Schechter-testified Bellamare
simply waved them towards the office; when he entered the plant they said the
organizers used no words at all. Goldberg said she had heard nothing about a
shutdown before that morning and thought, when Bellamare signaled , "they were
going to maybe discuss the contract and wanted us as witnesses ." And employee
Morrow testified that it was the organizers who had told the employees at the
union meeting the night before that the Company intended to close. It is thus clear
that the Union's purpose in entering the plant that day was to reach a "showdown"
with Bernstein on the entire contract negotiations, and that they were not there to
protest any announced illegal action by the Respondent.
D. The discharges of August 19
As stated above, on Wednesday, August 17, Bernstein posted a notice on the plant
bulletin board saying that as of 2 days later operations in the plant would be "dis-
continued." That Friday, the usual payday, the employees were paid; some of them,
including those named in the complaint , for Friday's work also , and some only for
the workweek ending Thursday. The complaint alleges that by these acts the
Respondent discharged seven named women. Of these, six were actually at work
on August 17 and 19; the seventh-Gertrude Koetzing-had been on vacation for 2
weeks. All these seven women returned to the plant Monday morning, to see,
as one of them said, what would happen They stood about on the sidewalk, saw
other employees enter the plant and work, and nothing happened. From there
they went to the union hall and the next morning appeared at the plant and estab-
lished a picket line. They carried a placard reading, in part, "locked out."
There was a suggestion in Bernstein's testimony at the hearing that these ladies
were not discharged, that if they did not enter the plant Monday morning it was
not because anyone told them to stay away. Inconsistently, however, he said in
his earlier affidavit he had laid off the six women . At the hearing he said he paid
off the women for their final Friday work "to prevent any further violence or dis-
ruption of our work. Now, we paid that to finish up the thing."
I think it is clear on the entire record, and I find, that Bernstein discharged the
employees on Friday evening, August 19. He said as much in his own affidavit;
the announcement of the bulletin board told them there would be no work for them
after that Friday; there is no indication anyone on behalf of the Respondent ever
countermanded these instructions to them ; and finally, throughout the entire period
of picketing which followed, the Respondent must have been aware of the "lockout"
sign carried by the pickets, clearly indicating the employees felt they were on the
sidewalk against their wishes.
Whether or not Gertrude Koetzing , who was not in the plant the week before
August 22, and therefore was not personnally advised of the Respondent 's attitude,
was in fact discharged , is a problem tied in with possible reinstatement nights for her
and will be considered later
Bernstein conceded that but for what happened on August 17, he would have re-
tained these women because there then was work for them to do . Indeed , he hired
at least some- replacements before they were recalled . Kate Goldberg, one of the
discharged women, testified credibly and without contradiction that when she was
paid off by Hyman Lazar on Friday evening, the foreman said to her: "You have
to put the blame on the Union ." As Bernstein phrased,it at the hearing, his reason
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for discharging them was "to prevent any further violence or disruption of our
work." In one of his earlier affidavits he stated the reason somewhat differently:
"This [notice of discontinuance] was written out by me because the three union
delegates had forced their way into the plant, and had taken the union members
away from their work." In his latter affidavit he gave still another reason for the
discharges: "They were laid off because the Employer was discontinuing the manu-
facture of eyelash curlers and their would be no work for them."
I think the total record warrants the conclusion, as alleged in the complaint, that
Bernstein discharged the women on August 19, because of their union activities and
to discourage their efforts to continue bargaining with him through their Union.
There was no violence in the factory on August 17. Foreman Ross testified that
when Bellamare entered the plant that morning, Hyman Lazar "was pushed beside
one of the machines, the paint machine " He added, however, Bellamare did not use
his hands, but his body brushed against Lazar. Again his testimony is. "I didn't
say he ['Bellamare] pushed him, his body ran right into him He didn't take his
hands and push him." Bernstein testified that Lazar, his brother-in-law, told him
he had gone to a doctor and had been bruised. Bernstein admitted he himself did
not see any bruises. Lazar did not appear to testify. Of this evidence, I cannot
make an affirmative finding that, however abrupt Bellamare may have been in
summarily directing the employees to come to the office, he in any way assaulted
or pushed one of the supervisory employees.
Moreover, it is clear that in the past meetings in Bernstein's office with union
representatives were attended by two employees and more than one organizer In
a shop so small, therefore, the major difference between August 17 and earlier
occasions was that on this occasion six or seven employees left their work. More
important, on this question of motivation, are the inconsistencies in Bernstein's own
statements. In not one of these three does he attribute misconduct to the employees.
Further, while at times blaming the organizers for his action, he elsewhere removes
them as a motivating provocation and refers only to the reduction in work I think,
in the total context of his refusal to bargain with the Union a .few weeks before, and
his repeated refusal a few days later when invited by the very proper Miss Robbins,
his true purpose was to put an end to all negotiations with the Union and to seize
the occasion of the diminishing volume of work as a device, prematurely, to curb
all union activities. I find that a preponderance of the evidence shows he discharged
Clara Schechter, Nellie Morrow, Catherine Kearney, Kate Goldberg, Maria Rodri-
guez, and Beatrice Fox that day because of their persistent union activities, and that
by his conduct the Respondent violated Section 8(a)(3) of the Act?
E. The alleged discharge of Gertrude Koetzing
Koetzing left for a vaction on August 8. On Friday, August 19, she sent her
husband to the plant for her paycheck, for that was the appointed payday. She said
her husband reported to her that Foreman Lazar had said the plant was closing and
would be turned into a warehouse. She nevertheless appeared at the plant Monday
morning and testified at the hearing that she went on the picket line to help the
other girls. She was present 6 weeks later on October 4, when Bernstein reinstated
four of the previously discharged employees. She offered to go to work, but Bern-
stein did not take her then. She went on to testify she returned to work early in
November and then 4 days later quit of her own accord on November 11. She
said she went back to the plant eventually "to try it out. Then my back started all
over again."
During cross-examination by Mr. Bernstein, Koetzing said that when she left on
her vacation she told the owner: "I don't think I will be able to come back any
more because of my back " She explained that working on the machines as she did
she developed pains in her back which made it difficult for her to continue working.
As her testimony went on she made the flat statement that when she left on vacation
she told Bernstein: "I was quitting my job because of my back." Pressing her with
further questioning, the union representative at the hearing attempted to clarify her
statement, and to him she replied unequivocally that she had voluntarily left her
employment on August 5. She closed with the following:
Q. Did you resign on August 5?
A. Yes.
Relying upon Koetzing's own testimony, I find she was no longer an employee of
the Respondent on August 19 when Bernstein discharged a number of female work-
7 Cf. The Houston Chronicle Pubil8hing Company, 101 NLRB 1208, enforcement denied
on other grounds 211 F. 2d 848 (C.A. 5).
THE ROLLASH CORPORATION 477
ers. It follows, accordingly, that when she applied for work on October 4, when some
of the striking discharged employees were taken back , she did not stand in the posi-
tion of an employee or of a striker , and Bernstein was not obligated to restore her
at all. Further, the additional allegation of the complaint, that when Bernstein did
take her back into the shop early in November he did not restore her to precisely
the same job she had before her vacation , must also fall . There can be no failure
to reinstate to "substantially the same position ," where the applicant involved is not
a returning striker or a formerly discharged employee. In conclusion , I shall rec-
ommend dismissal of the complaint entirely with respect to Gertrude Koetzing.
F. Elsie Raider-illegal discrimination
Raider had long been employed as a part-time office, part -time production, em-
ployee. She spent anywhere between 1 and 8 hours a day doing office work and the
remainder , as the workload in the office declined , at machines or assembly tables in
the production area. Because part of her duties consisted of office work, she was
paid $ 1 per day more than the regular operators . She was not discharged on Au-
gust 19 and worked all day Monday, August 22. On the morning of the 23d she tele-
phoned Bernstein to say she had decided not to work because of the picketing. It
thus appears that Raider is to be considered as having become a striker in sympathy
with the discharged employees and therefore an unfair labor practice striker. Dur-
ing the period August 23 to October 4, while she was on strike , Bernstein replaced
her with a new hire, Dorothy Levine, who did office and production work.
At the end of September Raider learned that the Company had sent letters of
recall to a number of other women; she therefore presented herself for work on
October 4 with others. When she arrived, Bernstein, according to his own testimony,
did not reinstate her because she had not returned when the picket line was
discontinued.
As an unfair labor practice striker , Raider was entitled to immediate reinstatement
when she abandoned the strike; and the Respondent was legally obligated to release
her direct replacement , Miss Levine , to make place for her.8 I find no merit in Bern-
stein 's contention that because Raider did not return immediately as the picketing
was discontinued , she therefore forfeited all reinstatement rights. There is evidence
that the picketing may have ceased Friday, September 30. Moreover, some of the
discharged employees did not return to work until Tuesday, October 4, There is
nothing to indicate Raider should be charged with knowledge that the strike was
abandoned, or that all the Respondent's illegal discharges had been remedied before
October 4. Indeed, as will appear, one of the six women illegally released on Au-
gust 19 (Maria Rodriguez) also attempted to return to work on October 4 and was re-
fused reemployment. She, at least, continued her status as an unfair labor striker.
Thus the unfair labor practices of the Respondent, which initially provoked Raider,
herself, to withhold her services in protest, was still continuing gat the very day of her
offer to abandon the strike. In the circumstances, I deem it totally irrelevant
whether any picketing continued or was discontinued the week before Raider offered
to return. Accordingly, I find that by refusing to reinstate Raider on October 4,
1960, the Respondent discriminated against her because of her strike activities, and
thereby violated Section 8 (a) (3) of the statute.
G. Illegal restraint
As will appear in greater detail below, Bernstein called several of the individual
discharged employees to leave the picket line and return to work on September 27,
1960. As one of the women put it, he then told them that upon their return to the
plant "we shouldn't discuss anything about the Union to any of the other workers
that are there. And we agreed to that." Bernstein himself described his order to
the returning employees as follows: "I told them they could not carry on any union
activities in tithe place. In other words, that they were to do their work and any union
activities would have to be done on the outside.
The statute makes it ,illegal for an employer "to interfere with, restrain, or coerce
employees" in their free exercise of the right to engage in self-organizational activi-
ties The Board has long held, with court approval, that company rules prohibiting
discussion of union activities, or solicitation of others to join unions, during the
employees' own time, albeit on company premises, unduly restrains the employees
in the free exercise of this right, and therefore constitutes a violation of Section
8(a) (1) of the Act .9 Accordingly, I find that by imposing this rule of silence at
8 N L R B v Mackay Radio & Telegraph Co , 304 U.S 333
0Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F. 2d 177 (C.A. 6).
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all times on the company premises upon the employees who had joined the Union,
the Respondent violated Section 8(a) (1) of the statute.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its operations set forth 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
It has been found that on July 27, 1960, and at all times thereafter, the Union
was the authorized and exclusive representative of the Respondent 's employees in
an appropriate unit for the purpose of collective bargaining, and that on and after
said date the Respondent refused to bargain with said representative in violation of
the Act. Accordingly, I shall recommend that the Respondent be ordered, upon
request, to bargain with the Union as the authorized and exclusive representative
of its employees in the appropriate unit.
Having found that the Respondent discriminated against a number of its em-
ployees with respect to their hire and tenure of employment, I will recommend that
it take appropriate action to undo the effects of these unfair labor practices.
All of the six women who were discharged on August 19, 1960, have been fully
reinstated. An issue was raised at the hearing, however, as to the accuracy of the
General Counsel's contention relative to the period during which the make-whole
provisions of the remedy should apply. The complaint alleges that Clara Schechter,
Catherine Kearney, Kate Goldberg, and Nellie Morrow were not reinstated until
October 4, 1960, and, by implication, that their backpay should run through that
date. The record shows clearly that on September 27, Bernstein received a tele-
phone call from a Board agent who advised him a complaint was about to be issued
involving the discharged women and that "it would be a good policy" to reinstate
them quickly. Bernstein immediately had his foreman call the women into his
office. Goldberg, Kearney, and Schechter were on the picket line. Goldberg first
testified that she and Kearney went in; later she said all the girls went in. Bernstein
said all these three entered his office. He offered them work then and there.
Speaking for all three women, Goldberg said they could not start right away be-
cause they had to go to the "Labor Board." Bernstein followed up his oral invi-
tation with registered letters to the women. All four, including Morrow, presented
themselves on October 4, and were in fact reinstated.
Although contending that reinstatement of these employees was not effectuated
until October 4, the General Counsel came forth with no persuasive explanation of
why the discharged employees did not accept Bernstein's immediate unqualified offer
of reinstatement. Nor did the Union's representative or the employees do so at the
hearing. I think in these circumstances, considering particularly Bernstein's prompt
acceptance of the Board agent's advice, it would be an undue penalty upon the
Respondent to extend the backpay assessment a further 1-week period beyond
September 27. Accordingly, I find that an adequate offer of reinstatement was made
to Goldberg, Kearney, and Schechter on September 27, 1960, and that the backpay
liability of the Respondent was cut off as of that day for them.
Nellie Morrow was not on the picket line on September 27. The registered letters
sent out by the Respondent appear to have reached the post office for mailing on
September 29, and Bernstein indicated at the hearing that by error none may have
gone out to Morrow. She testified she never received any invitation to return but,
fortunately, learned from the other girls of all Bernstein was doing. She therefore
arrived with them on October 4 and was reinstated. Her backpay period therefore
runs to that date, as alleged in the complaint.
Beatrice Fox did not appear at the hearing. Bernstein testified that on Monday,
August 22, Fox called him on the telephone and said: "I don't want to have anything
to do with the Union. I don't want to have any violence. My husband said it is
not safe . I don't want to work any more." Bernstein asked her to send him
a letter to that effect and Fox did write him, saying: "I . . . hereby certify that
I have left my job on my own accord." The complaint concedes an adequate offer
of reinstatement was made to Fox on September 27, and that at best the make-whole
provision as to her must be cut off as of that date. She was illegally discharged,
and Bernstein did not try to reassure her when she called him on Monday to tell
him of her fears of the moment. At best, I believe her conversation with the owner,
even including her hastily written note, reveals a frightened lady, unaccustomed to
strike action and union difficulties. Her note-I left my job-indicates as much a
desire to disassociate herself from possible violence , as it might show a clear aban-
THE ROLLASH CORPORATION 479
-donment of any remedial benefit she is entitled to under established Board policy
to correct improper conduct by employers. She had just been subjected to the most
direct coercion an employer can bring to bear upon employees. In the circumstance,
I am not satisfied, absent her personal testimony, she waived the right to reinstate-
ment. Backpay as to her shall be computed from August 22 to September 27, 1960.
Maria Rodriguez, the sixth woman discharged, also did not appear as a witness.
She was fully reinstated on November 10. The Respondent sent her also a registered
letter as it did other women on about Septembmer 29, inviting her return. Bernstein
admitted that in the case of Rodriguez the letter returned marked "unclaimed." She
nevertheless presented herself on October 10, in response to the invitation, but
Bernstein refused to put her to work because she was "late" in responding to his
letter.
From his own recollection of the conversation with Rodriquez when she returned,
it appears the employee had found work elsewhere and that it took the Union some
time to locate her. As it is clear the Respondent's letter of recall never reached
Rodriquez (apparently she had changed residence or there had been an error in
addressing the letter), I see no reason to deviate from the usual backpay formula
in her case. She must be made whole for loss of earnings between August 22 and
November 10, 1960.
The Respondent recalled Elsie Raider, the part-time production employee who had
joined the strike and had been refused reinstatement illegally on October 4, by
sending her a telegram on November 9, 1960; she returned to work the next day.
Bernstein told her she would have to work full time in the factory, because the office
work she had normally done before was being performed by Miss Levine, who was
hired to replace her. Levine was still employed in the dual capacity at the time
of the hearing, and Raider since her reinstatement in November has done only pro-
duction work and was never restored to her part-time office duties. On December
12, 1960, Bernstein reduced her rate of pay from $1.62 to $1.42 per hour. He told
her this was because she was no longer performing office work. It would appear,
therefore, that the measure of Raider's backpay claim in consequence of the illegal
discrimination against her, must include a make-whole provision for the period
October 4 to November 10, while she was unlawfully in discharge status, and a
20-cent per hour differential between the amount she was paid as an office-operator
and the reduced amount Bernstein imposed on her in consequence of her not doing
office work anymore.
While cross-examining Raider, Bernstein elicited from her a sole conversation she
had with him after her reinstatement. The purport of this testimony, according
to the Respondent, is to establish that there came a time, after her return to the plant,
when Raider chose to relinquish any right to reinstatement to her part-time office
job, and that her voluntary choice explained and justified Bernstein's 20-cent per
hour reduction in her pay. Raider said she one day told Bernstein, in the office,
"I am not going to claim for the office job." She said Bernstein did not ask her why
she felt that way, and that she did not explain . At the hearing Raider explained
what caused her to speak thusly to the owner. "I was very annoyed one day with
all the smirks and smiles , and in fact, one of your relatives [ Bernstein's ] stopped
me and told me how-what a good job it was and how pleased you were with the
other girl . and I got very annoyed, and I said to May, Mrs. Strizik, that I don't
want the job in the office. She went back and told you, and then I was called
in . impulsively I said I didn't want the office job . . . I didn't want them to
think that I was hitting the machine all day and pining to go back in the office."
Raider also testified: "I didn't want to work in the factory."
I do not deem the foregoing testimony sufficient to justify Bernstein 's reduction
of her hourly rate on December 12 by 20 cents. At best her premium pay for office
work at $1 per day came to 12a cents per hour, and not 20 cents. Even at her
former rate, she was entitled, when the Respondent finally reinstated her on No-
vember 10, to her old job, including the apparently more desirable office work duties.
Bernstein never offered this to her, a clear violation of his statutory obligation when
she abandoned the unfair labor practice strike. She appears to have voiced her re-
sentment of carping ridicule to Bernstein 's relatives who teased her at work, and not
to the Employer directly, and she never said anything at all to Bernstein until he
called her into the office to inquire of her. I believe her explanation that her feeling
at the moment was an impulsive reaction to the taunts of the boss' relatives, for she
still said she did not like working in the factory. I do not believe her statement made
on that one occasion evinced "a final resolve" not to accept her old job back were it
offered to her.i° I find therefore that Raider was not reinstated to her previous em-
lU R K. Baking Corp., 120 NLRB 772, 777.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment, and that the December 1960 reduction in her pay was a continuing dis-
crimination against her . Accordingly, as to Raider .1 shall recommend that the Re-
spondent offer to her full and correct reinstatement and make her whole.
I shall recommend that the Respondent be ordered to make all of the above-named
employees whole for any loss of earnings they may have suffered because of the
discrimination against them , by payment of a sum of money equal to the amount
they normally would have earned as wages from the date of their discrimination to
the date of their reinstatement , less their net earnings during said period, with back-
pay computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289. I will also recommend that the Re-
spondent make available to the Board , upon request, payroll and other records to
facilitate the determination of the amounts due under this remedy.
In view of the nature of the unfair labor practices committed , the commission of
similar and other unfair labor practices reasonably may be anticipated . I shall
therefore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case , I make the following:
CONCLUSIONS OF LAW
1. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. The Rollash Corporation is an employer within the meaning of Section 2(2)
of the Act.
3. All employees of the Respondent employed at its plant, excluding the book-
keeper, the father, brother, and father-in-law of the president, and all supervisors as
defined in the Act, constitute, and have at all times material to this proceeding con-
stituted, a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, was on
July 27, 1960, and at all times since has been, the exclusive representative of all
the employees in the aforesaid appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By discharging or otherwise discriminating against its employees, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
6. By refusing to bargain collectively with the Union as the exclusive repre-
sentative of the employees in the aforesaid appropriate unit, as found above, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
7. By the foregoing conduct and by prohibiting its employees from discussing
union activities on their own time on company premises, the Respondent has inter-
fered with, restrained, and coerced employees in the rights guaranteed in Section 7
of the Act, and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Rubin Brown , an Individual , d/b/a Ace Wholesale Electrical
Supply Co.; Brown Wholesale Electric Co.; Excel Electrical
Supply Co. ; Courtesy Wholesale Electric Co. and Hyman Ram
Brown Employees Association and Hyman Ram. Cases Nos.
21-CA-.37!,7 and 21-CB-1419. September 29, 1961
DECISION AND ORDER
On January 12, 1961, Trial Examiner Maurice M. Miller issued
his Intermediate Report in the above-entitled proceeding, finding that
133 NLRB No. 55.