Strauss Stores Corp.

National Labor Relations Board - Board Decisions

May 15, 1951

94 N.L.R.B. 440 (N.L.R.B. 1951)

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picketing by its members on the Redondo Beach project for the purposes of
forcing or requiring Westinghouse to assign work heretofore performed by the
Machinists to the Millwrights, and further, that the Respondents notify its
members that Respondents have taken such action.
On the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
(1) International Association of Machinists, and its Local Lodge No. 1235;
Los Angeles Building and Construction Trades Council, A. F. L.; and Millwright
and Machinery Erectors Local 1607 of the United Brotherhood of Carpenters
and Joiners of America, A. F. L, are each labor organizations within the meaning
of Section 2 (5) of the Act.
(2) By inducing and encouraging employees of Stone and Webster, Engineer-
ing Corporation, certain employees of Westinghouse Electric Corporation, and
the employees of other contractors and subcontractors engaged in construction
work on the Redondo Beach project, hereinabove more particularly referred to,
with the object of forcing or requiring Westinghouse to assign particular work
to employees in a particular organization, namely, Millwrights Local 1607, rather
than to employees in another labor organization, namely, International Associa-
tion of Machinists, Local Lodge 1225, the Respondents have engaged in unfair
labor practices within the meaning of Section 8 (b) (4) (D) of the Act.
(3) The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
STRAUSS STORES CORPORATION and MERCHANDISE DELIVERY DRIVERS
AND EMPLOYEES, LOCAL 804, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL
RETAIL AND WHOLESALE EMPLOYEES UNION, LOCAL 830 (INDEPEND-
ENT), FORMERLY KNOWN AS UNITED RETAIL AND WHOLESALE
EMPLOYEES OF AMERICA, CIO, LOCAL 830, AND `65', THE WHOLESALE,
RETAIL AND WAREHOUSE WORKERS' UNION OF NEW YORK AND NEW
JERSEY and MERCHANDISE DELIVERY DRIVERS AND EMPLOYEES, LOCAL
804, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, AFL. Cases Was.
2-CA-793 and 2-CB-257. May 15,1951
Decision and Order
On December 20, 1950, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
94 NLRB No. 80.
STRAUSS STORES 'CORPORATION 441
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondents had not engaged in certain other alleged unfair
labor practices and recommended that the complaint be dismissed with
respect to such allegations. Thereafter, the Respondent Unions and
the General Counsel filed exceptions to the Intermediate Report and
supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the modifications and additions noted
below.
1. In agreement with the Trial Examiner, we find, contrary to the
'Respondent Unions' contention, that the Respondent Company, by
renewing the 1948 agreement containing an unauthorized union-shop
provision, interfered with, restrained, and coerced employees in the
exercise of their statutory rights in violation of Section 8 (a) (1) of
the Act and lent support and assistance to the Respondent Local 830
in recruiting and maintaining its membership in violation of Section
8 (a) (2) of the Act.2 Additionally we find, as the General Counsel
contends, that the renewal of the foregoing agreement also constituted
a violation of Section 8 (a) (3).3
2. We also agree with the Trial Examiner that the Respondent Local
830 in renewing the 1948 unauthorized union-shop contract, joined the
Respondent Company in creating discriminatory conditions of em-
ployment and thereby violated Section 8 (b) (2) 4 As the complaint
I At the request of the Respondent Unions, the parties' time to file exceptions was
extended to January 29, 1951. On January 25 , the General Counsel filed timely ex-
ceptions with the Board. On January 29, the Respondent Unions filed their exceptions
and requested an extension of time to file briefs , which was granted. The General
Counsel served his exceptions and briefs on the Respondent Unions on February 1,
attributing the delay in serving the exceptions to a mistaken belief that the second
extension applied to the exceptions as well as to the briefs.
The Respondent Unions argued that the General Counsel's exceptions should be rejected
on the ground that they were not immediately served as required by Section 102 46 of
Board Rules and Regulations . As the General Counsel filed his exceptions with the
Board in time , and as it does not appear that the Unions were prejudiced by the incon-
sequential delay in the service of the exceptions on them, we find no persuasive reason
for refusing to consider the exceptions
2 The Respondent Company did not file any exceptions to these findings or to the Trial
Examiner 's other 8 ( a) (1) findings which we also adopt.
3 See, for example , New York State Employers Association, Inc, and Red Star Express
etc., 93 NLRB 175.
• In agreement with the Trial Examiner we find, contrary to the General Counsel's con-
tention, that the Respondent " 65" neither committed any unfair labor practices nor was
otherwise responsible for the renewal of the 1948 contract . For this reason , and in view
of the fact that "65" as Local 830's successor , omitted the unlawful union -security provi-
sion from the contract which it executed with the Company on March 9, 1950 , we shall
not direct a remedial order against "65," as the Trial Examiner did.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against Local 830 does not also allege this conduct to be in violation of
Section 8 (b) (1) (A) we, like the Trial Examiner, shall not make
such a finding.
The Remedy
Having found, among other things, that the Respondent Local
830 was an illegally assisted Union whose disability to function
as the exclusive bargaining representative of the Respondent Com-
pany's employees devolved upon its successor, "65," the Trial Ex-
aminer recommended in substantial accordance with the principles
of the Resnick and related cases,' that the Company be ordered to
withdraw recognition from Local 830 and its successor "65" and,
with certain qualifications, to cease giving effect to its agreement
with "65," unless and until either organization has been certified
by the Board.
The Respondent Unions urge, in effect, that this remedy is not
warranted by the facts of the case. We do not agree. In our
opinion the recommended order is necessary and appropriate to dis-
sipate the coercive effects of the Company's unlawful assistance s
The Trial Examiner also recommended a broad cease and desist
order against the Respondent Company because it executed the un-
authorized union-security agreement mentioned above. We adopt
this recommendation, but in doing so, we also rely on the Trial Exam-
iner's other 8 (a) (1) findings.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby.orders that:
5 Julius Resnick, Inc., 86. NLRB 38; Salant f Salant, Incorporated, 87 NLRB 215, and
other cases cited in the Intermediate Report
We do-riot agree with Chairman Herzog that the remedy of the Resnick and Salant
cases, supra, which requires withdrawal of recognition of the Union until certification and
abrogation of the unlawful union-security agreement, is not necessary to rectify the unfair
labor practice in question and that only deletion of the unlawful union-security clause is
appropriate. Furthermore, we cannot accept his general strictures against the doctrine
of these cases on the theory that they went "too far" and that "a lesser remedy should
ordinarily suffice." As the Board pointed out in the Resnick case, the effect of the unfair
labor practices in question is to coerce employees into becoming or remaining members
of the assisted Union ; and, "It would not effectuate the purposes of [Section 8 (a) (2)
and (1)] merely to order the eradication of the illegal provisions from the contract, and
permit the [assisted union] to continue to enjoy a representative status which it has
strengthened by virtue of these illegal provisions " A remedy limited to the deletion of
the illegal clause, as the Chairman proposes, is not adequate to be "commensurate with
the offense," because it does not deal with the problem of coerced membership stemming
from the prior existence of the illegal clause Moreover, not only would the limited remedy
be inadequate to purge fully the unfair labor practices, but its adoption would actually
serve to encourage unions to use such illegal clauses to achieve the coercive effects which
the Board recognizes flows from their mere presence, knowing that all they would have
to lose if unfair labor practice charges were filed would be the loss of the provision.
STRAUSS STORES CORPORATION 443
I. The Respondent, Strauss Stores Corporation, Maspeth, Long
Island, New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees concerning their union affiliation,
activities, or sympathies, or those of other employees.
(b) Encouraging its employees by promises and offers of financial
assistance or ther benefits to form an independent union.
(c) Recognizing Retail and Wholesale Employees Union, Local
830 (Independent), formerly known as United Retail and Whole-
sale Employees of America, CIO, Local 830, its successor, 65, The
Wholesale, Retail and Warehouse Workers' Union of New York and
New Jersey, or any other successor, as the representative of its em-
ployees for the purpose of dealing with it concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until such labor organization
shall have been certified by the National Labor Relations Board.
(d) Entering into, renewing, or giving effect to any agreement
with Retail and Wholesale Employees Union, Local 830 (Inde-
pendent), formerly known as United Retail and Wholesale Employees
of America, CIO, Local 830, or with any other labor organization of
its employees, which requires its employees to join or maintain mem-
bership in such labor organization as a condition of employment,
unless such agreement has been authorized, and only to the extent
permitted, under the National Labor Relations Act.
(e) Performing or giving effect to its contract of March 9, 1950,
with 65, The Wholesale, Retail and Warehouse Workers' Union of
New York and New Jersey, or to any modification, extension, sup-
plement, or renewal thereof, or to any other contract, agreement, or
understanding, entered into with the said labor organization relating
to grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until the said
labor organization shall have been certified by the National Labor
Relations Board.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Merchandise Delivery Drivers
and Employees, Local 804, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Retail and Whole-
sale Employees Union, Local 830 (Independent), formerly known
as United Retail and Wholesale Employees of America, CIO, Local
830, or any successor labor organization, including 65, The Whole-
sale, Retail and Warehouse Workers' Union of New York and New
Jersey, as the representative of the Respondent Company's employees
for the purpose of dealing with the Respondent Company concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until such labor organi-
zation shall be certified by the National Labor Relations Board.
(b) Post at its warehouse in Maspeth, Long Island, New York,
copies of the notice attached hereto as Appendix A.7 Copies of such
notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the Respondent Company's repre-
sentative, be posted by the Respondent Company immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent Company to insure that the said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, as to what steps
Respondent Company has taken to comply herewith.
II. The Respondent, Retail and Wholesale Employees Union, Local
830 (Independent), formerly known as United Retail and Wholesale
Employees of America, CIO, Local 830, New York, New York, its
officers, representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Entering into, renewing, or participating in the enforcement
of any agreement or arrangement with the Respondent, Strauss Stores
Corporation, its officers, agents, successors, or assigns, which requires
the employees of the said Company to join or maintain membership
in said Union or in any successor labor organization, as a condition
of employment, unless such agreement has been authorized, and only
to extent permitted, under the National Labor Relations Act.
(b) In any like or related manner causing or attempting to cause
the Respondent, Strauss Stores Corporation, its officers, agents, suc-
4 In the event this Order is enforced by decree of a United States Court of Appeals, these
shall be inserted before the words "A Decision and Order" the words "A Decree of the
United States Court of Appeals Enforcing."
STRAUSS STORES CORPORATION 445
cessors, or, assigns, to discriminate against its employees in violation
of Section 8 ( a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its business offices and meeting halls in New York,
New York, copies of the notice attached hereto as Appendix B.8
Copies of said notice , to be furnished by the Regional Director for the
Second Region, shall , after being duly signed by the official repre-
sentative of the Respondent Local 830 , be posted by the said Respond-
ent immediately upon receipt thereof and maintained for a period of
at least sixty ( 60) consecutive days thereafter in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken by the said Respondent Local 830 to
insure that the said notices are not altered , defaced, or covered by
any other material.
(b) Mail , to the Regional Director for the Second Region signed
copies of the notice attached hereto as Appendix B, for posting, the
Respondent Company willing , in the warehouse of the Respondent
Company in Maspeth, Long Island, New York, in places where notices
to employees are customarily posted.
(c) Notify the said Regional Director for the Second Region in
writing, within ten (10 ) days from the date of this Order, as to what
steps the Respondent Local 830 has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent , 65, The Wholesale,
Retail and Warehouse Workers' Union of New York and New Jersey,
has engaged in any unfair labor practices , and insofar as it alleges
that Retail and Wholesale Employees Union, Local 830 ( Independ-
ent), formerly known as United Retail and Wholesale Employees of
America, CIO, Local 830, has violated Section 8 ( b) (1) (A) of
the Act.
CHAIRMAN IIERZOG, dissenting in part:
I disagree with my colleagues in this case only with respect to the
remedy they think appropriate for the violations of Section 8 (a)
(2) and 8 (b) (2). I would not order withdrawal of all recognition
from "65" or its predecessor Local 830. It appears to me that that all-
encompassing remedy is not necessary in this, or in similar cases, to
free the employees from the effect of the mere presence of an unlawful
union-security clause in a contract. Here, indeed , the arguments for
applying it are particularly weak, for the majority status of Local 830
was independently attained , and maintained , in the face of the coer-
cive attempt of Respondent Company to undermine it, before the il-
8 See footnote 7.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legal clause was agreed upon by the parties. That clause could have
had no effect upon the establishment of that majority.
Although I originally joined in the Resnick and Salant decisions,9
I have concluded that they went much too far in the direction of re-
quiring employers to put an end to all bargaining relations with an
incumbent majority representative, where the only vice in those re-
lations was the presence of a security clause which, although unen-
forced, went beyond the statute. A lesser remedy should ordinarily
suffice. In the interest of not disturbing existing relationships, except
to the extent that they must be annulled because unlawful, I would
not set the entire contract aside or order withdrawal of all recognition
until certification. Instead, I would leave the employees, if they so
chose, to the exercise of their right to file a decertification petition, or
to seek other representation, under Section 9 (c) of the Act. I would,
of course, order the parties to cease and desist immediately from giving
effect to the illegal clause or any similar arrangement. To that extent
the remedy is not only necessary to correct the violation of law, but
is-unlike the drastic one endorsed by my colleagues-commensurate
with the offense.
MEMBER STYLES took no part, in the consideration of the above De-
cision and Order.
Appendix A
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, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
affiliation, activities, or sympathies, or those of other employees.
WE WILL NOT encourage our employees by promises and offers
of financial assistance or other benefits to form an independent
union.
WE WILL NOT enter into, renew, or give effect to any agreement
WITH RETAIL AND WHOLESALE EMPLOYEES UNION, LOCAL 830 (IN-
DEPENDENT), FORMERLY KNOWN AS UNITED RETAIL AND WHOLESALE
EMPLOYEES OF AMERICA, CIO, LOCAL 830, or with any other labor
organization of our employees, which requires our employees to
join or maintain membership in such labor organization as a
condition of employment, unless such agreement has been au-
thorized, and only to the extent permitted, under the National
Labor Relations Act.
9 Footnote 5, supra.
STRAUSS STORES CORPORATION , 447
WE WILL NOT perform or give effect to our contract of March 9,
1950, with 65, THE WHOLESALE, RETAIL AND WAREHOUSE WORKERS'
UNION OF NEW YORK AND NEW JERSEY, or to any modification ex-
tension , supplement, or renewal, thereof, or to any other contract
agreement, or understanding, entered into with the said labor or-
ganization relating to grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment,
unless and until the said organization shall have been certified
by the National Labor Relations Board.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist MERCHANDISE
DELIVERY DRIVERS AND EMPLOYEES , LOCAL 804, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL, or any other labor organization, to
bargain collectively through representatives of their own choosing,
to engage in concerted activities, for the purposes of collective
bargaining or other mutual aid or protection, 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 or-
ganization as a condition of employment, as authorized in Section
8 (a) (3)• of the National Labor Relations Act.
WE WILL withdraw and withhold all recognition from RETAIL
AND WHOLESALE EMPLOYEES UNION, LOCAL 830, (INDEPENDENT),
formerly known as United Retail and Wholesale Employees of
America, CIO, Local 830, or any successor labor organization, in-
cluding 65, THE WHOLESALE AND WAREHOUSE WORKERS' UNION
OF NEW YORK AND NEW JERSEY, as the representative of any of
our employees for the purpose of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until such
labor organization shall have been certified by the National Labor
Relations Board.
STRAUSS STORES 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.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE TO ALL MEMBERS OF RETAIL AND' WHOLESALE EMPLOYEES
UNION, LOCAL 830 (INDEPENDENT), FORMERLY KNOWN AS UNITED
RETAIL AND WHOLESALE EMPLOYEES OF AMERICA, CIO, LOCAL 830
AND TO ALL EMPLOYEES OF STRAUSS STRES CORPORATION
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, as amended , we hereby notify you that :
WE WILL NOT enter into, renew , or participate in the enforcement
of any agreement or arrangement with STRAUSS STORES CORPORA-
TION, its officers, agents , successors , or assigns , which requires the
employees of the said company to join or maintain membership
in our union , or any successor labor organization , as a condition
of 'employment , unless such agreement has been authorized, and
only to the extent permitted , under the National Labor Relations
Act.
WE WILL NOT in any like or related manner cause or attempt
to cause STRAUSS STORES CORPORATION , its officers , agents, succes-
sors, or assigns, to discriminate against its employees in violation
of Section 8 (a) (3) of the Act.
RETAIL AND WHOLESALE EMPLOYEES UNION,
LOCAL 830 ( INDEPENDENT), formerly known
as United Retail and Wholesale Employees of
America, CIO, Local 830.
Labor Organization.
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.
Intermediate Report
Lloyd S. Greenidge, Esq., for the General Counsel..
Philip Davis, Esq., of New York, N. Y., for the Respondent Company.
Neuberger, Shapiro, Rabinowitz , and Boudin , by Victor Rabinowitz , Esq., of
New York, N Y., (Sameul A. Neuberger, Esq., of New York, N. Y., of counsel),
for the Respondent Unions.
Upon separate charges duly filed by Merchandise Delivery Drivers and Em-
ployees, Local 804, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, herein called Local 804, the General
Counsel of the Nationhl Labor Relations Board,' by the Regional Director for the
The General Counsel and his representative at the hearing are referred to herein as_
the General Counsel. The National Labor Relations Board is referred to as the Board
STRAUSS STORES CORPORATION, 449
Second Region (New York, New York), issued a consolidated complaint 2 dated
July 20, 1950, against Strauss Stores Corporation, Maspeth, Long Island, New
York, herein called the Respondent Company, and Retail and Wholesale Em-
ployees Union, Local 830 (Independent), formerly known as United Retail and
'Wholesale Employees of America, CIO, Local 830, New York, New York, herein
called Local 830, and '65', The Wholesale, Retail and Warehouse Workers' Union
of New York and New Jersey,' New York, New York, herein called '65',' alleging
that the Respondent Company and the Respondent Unions had engaged in and
are engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1), (2), and (3), and Section S (b) (1) (A) and (2), respectively,
and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act. Copies of the charges, the consolidated com-
plaint, and the order consolidating the cases and notice of hearing were duly
served upon the Respondents and upon Local 804.
With respect to the unfair labor practices, the complaint alleged in substance
that : (1) On or about March 22, 1949, Local 830 was merged with '65'; (2) from
in or about February 1949, the Respondent Company interrogated its employees
concerning their union affiliations and activities and suggested and encouraged,
by promises and offers of financial assistance and other benefits, that they form
an independent union; (3) on or about March 28, 1949, the Respondents executed
an agreement modifying and continuing a former agreement executed on or about
February 2, 1948, which required as a condition of employment by the Respond-
ent Company membership in good standing in the Respondent Unions; (4) the
said agreement is invalid and in violation of the Act; (5) neither of the Respond-
ent Unions has ever been certified by the Board as a labor organization authorized
by the employees of the Respondent Company to make an agreement requiring
membership in either of the Respondent Unions as a condition of employment
by the Respondent Company; and (6) from on of about March 30, 1949, the
Respondent Unions have threatened to inflict and have inflicted bodily injury
upon certain of the Respondent Company's employees for the purpose of com-
pelling them to abandon or reject Local 804, and/or support the Respondent
Unions.
The Respondent Company duly filed its answer which, in effect, denied certain
facts with respect to commerce, admitted that on or about March 28, 1949, it
entered into a written agreement with the Respondent Unions, denied that the
said agreement was illegal, denied that it had interrogated its, employees or en-
couraged the formation of an independent union by promising benefits, and
denied the commission of any unfair labor practices. The Respondent Unions
filed a joint answer which, in effect, denied knowledge or information sufficient
to form a belief with respect to certain commerce facts, admitted that Local
830 had been merged into '65', denied that they had entered into a contract
with the Respondent Company on March 28, 1949, denied that they had threatened
to inflict or had inflicted bodily harm on employees of the Respondent Company
for the purpose of compelling them to abandon Local 804 or support the Respond-
ent Unions, and denied the commission of any unfair labor practices.
On August 2, 1950, '65' filed a request for a bill of particulars. On August 15,
1950, Trial Examiner Albert P. Wheatley issued an order granting the request
in part and denying it in part. In compliance with this order, the General Coun-
sel filed a bill of particulars on August 24, 1950.
2 By appropriate order these cases were consolidated for hearing on July 20, 1950
a The name of '65' appears in the caption as amended at the hearing
Local 830 and '65' are referred to collectively as the Respondent Unions.
953841-52-vol 94-30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held on September 14 and 15, 1950, at New
York, New York, before Sydney S. Asher, Jr., the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel, the Re-
spondent Company, and the Respondent Unions were represented by counsel and
participated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses and to introduce evidence bearing on the issues was afforded
all parties.
At the conclusion of the hearing, the Respondent Unions moved to dismiss the
complaint with respect to Local 830, and also with respect to `65'. The Respondent
Company moved to dismiss the complaint with respect to the Respondent Com-
pany. These motions are disposed of herein. All parties were afforded an op-
portunity to present their contentions orally upon the record, and did so. All
parties were granted time after the close of the hearing to file briefs and/or
proposed findings of fact and conclusions of law. Briefs have been received from
the General Counsel and the Respondent Unions, and have been duly considered.
After the close of the hearing, the General Counsel moved to amend the plead-
ings to conform to the proof with respect to names, dates , and other formal and
nonsubstantive matters. The motion was granted on October 3, 1950.
Upon the entire record in these cases, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY'
The Respondent Company is a New York corporation with its principal office
and place of business in Maspeth, Long Island, New York. It is engaged in the
retail selling of automobile parts and accessories , radio and television parts and
accessories , appliances , sporting goods, and similar merchandise. It maintains
and operates a warehouse in Maspeth and 61 retail stores, all located within the
State of New York. During the year immediately preceding the hearing herein,
the Respondent Company, in the course and conduct of its business operations,
caused to be purchased, transferred, and delivered to its Maspeth warehouse
merchandise valued in excess of $3,000,000, of which more than 50 percent was
transported to Maspeth from outside the State of New York. During the same
period, the Respondent Company sold at its retail stores in New York products
valued at over $6,000,000, all of which were sold within the State of New York.
Strauss Merchandising Corporation is a New York corporation which is a
wholly owned subsidiary of the Respondent Company. During the year immedi-
ately preceding the hearing herein, Strauss Merchandising Corporation shipped
merchandise exceeding $1,000,000 in value from within the State of New York to
points outside the State of New York.
In view of the above facts, it is found that the Respondent Company is engaged
in commerce within the meaning of the Act.
II. THE ORGANfZATIONS INVOLVED
Merchandise Delivery Drivers and Employees, Local 804, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
and '65', The Wholesale, Retail and Warehouse Workers' Union of New York
and New Jersey , are labor organizations within the meaning of Section 2 (5) of
the Act.
G The facts contained in this section are based primarily on the uncontradicted testimony
of Leonard S Strauss , vice president of the Respondent Company.
STRAUSS STORES CORPORATION, 451
Local 830 and '65' were both affiliates of an organization known as the Dis-
tributive Trades Council. Local 830 had jurisdiction over retail operations of
the merchandising industry, and '65' over wholesale operations. In February
or March 1949, negotiations took place looking toward increased cooperation
between them. As a result of these negotiations, the membership of Local 830,
on March 22, 1949, passed the following resolution :
We, the members of Local 830, at a special general membership meeting on
Tuesday, March 22nd, 1949, hereby authorize and direct the officers of Local
830 to take all steps necessary to accomplish the following purposes :
1. Local 830 members will abide by and operate under all the rules, regu-
lations, by-laws, policies, and practices of Local 65, including but not
limited to :
a. Attendance at and form of membership meeting.
b. Dues.
c. Collective bargaining.
d. Rights and duties of membership (as set forth in Local 65's Con-
stitution).
e. Leadership.
2. Local 65, in consideration of Local 830's turning over all dues and
other funds received by or for it will meet all costs arising from the defense
of the membership of Local 830.
3. In consideration of 1 and 2 above, the members of Local 830 will have
identical privileges with those afforded the members of Local 65.
The General Council of '65' approved the above resolution of Local 830 on
March 28, 1949. On April 3, 1949, '65' undertook all the financial obligations of
Local 830, and Local 830 transferred its treasury to '65'. Since then, Local
830 has never had a treasury in its own name. All funds thereafter received by
Local 830 under the checkoff provisions of contracts with various employers
were paid directly into the treasury of '65'. In May 1950, '65' amended its
constitution to include jurisdiction over retail shops, a jurisdiction formerly
exercised by Local 830. '
At the, time of the effectuation of the understanding outlined above, Local
830 held collective bargaining contracts with various employers. Pending their
expiration, Local 830 continued to administer them. But as each individual
contract was about to expire, the employees involved voted to transfer their
membership to '65', and the contract was then renewed in the name of '65',
unless there was determined opposition on the part of the employer involved.
Local 830 did not attempt to organize any new shops, but continued to exist for
the purpose of administering any contracts still in its name. At the time of
the hearing herein, there were only a few collective bargaining' contracts re-
maining in the name of Local 830, and the membership of Local 830 had dwindled
to approximately 400. In short, Local 830 has been allowed to atrophy, but
is nevertheless still in existence as a separate entity.'
In view of the above facts, it is found that Local 830 was, at all times material
herein, and still is, a labor organization within the meaning of Section 2 (5)
of the Act.
"The facts contained in the last few paragraphs of this section are based primarily upon
the uncontradicted testimony of Victor Rabinowitz, attorney for the Respondent Unions.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events'
On February 2, 1948, the Respondent Company and Local'830 entered into
a collective bargaining agreement effective until February 1, 1950, covering,
among others, a unit of warehouse employees. This contract provided that
either party could reopen the contract on February 1, 1949, for the purpose of
renegotiating wages. It further provided that, if agreement was not reached
on wages on or before February 1, 1949, either party could elect to terminate
the contract in its entirety by giving notice to the other party of its intentions.
Other provisions of this contract will be discussed in greater detail hereafter.
During January and February 1949, Local 830's negotiating committee for
the Respondent Company's employees met several times with representatives of
management to discuss the modification of wage rates provided for in the con-
tract. The parties were unable to teach agreement. The final negotiation
meeting took place on February 16, 1949. At that time, a representative of the
Respondent Company (either Philip Davis, the Respondent Company's attorney,
or Rube Farmer, its general manager) told Local 830's negotiating committee
that he had heard of an impending merger between '65' and Local 830. Farmer
then stated that he had been contracting with Local 830 and that now another
union-'65'-was entering the picture and that he was therefore terminating
the contract with Local 830 as of February 1, 1949. On the following payday,
the warehouse employees of the Respondent Company received written notices
to the effect that the Respondent Companv had terminated its contract with
Local 830.
Approximately a week later, Farmer and other representatives of the Respond-
ent Company called certain warehouse employees to a meeting in Farmer's
office. When asked why he would not deal with Local 830, Farmer replied
that `65' was entering the picture, and he did not want to do business with
"a Communist union." Farmer then told the employees to "go out and get
any American union" which would comply with the Act and sign the required
affidavits,' and that if they did so, he would be glad to do business with them.
When one of the employees asked Farmer if he had any particular union in
mind, Farmer replied : "No, any union that you choose." On that day or the
next, the warehouse employees met and decided to seek another union to represent
them, in line with Farmer's desires . Accordingly, a committee of employees
contacted Louis Sunshine, a representative of Local 804. Sunshine met with the
employees and obtained signed application cards from them for membership in
Local 804.
On March 4, 1949, Local 804 filed a representation petition with the Board
seeking certification as the bargaining agent of the Respondent Company's
warehouse employees.' On June 23, 1949, the Regional Director for the Board's
Second Region dismissed this petition on the ground that the unit sought was
inappropriate for the purposes of collective bargaining. No appeal was taken
from the Regional Director's dismissal.
7 The facts contained in this subsection are based primarily upon the undenied testimony
of Michael Widico, George Levine, and Ralph DePierro The parties stipulated that Paul
Giambalvo would substantially corroborate the testimony of Widico and Levine in this
respect. Rube Farmer, who left the employ of the Respondent Company in May 1949,
did not testify. '
8 The employees present understood that, at the time, '65' had not filed the affidavits
provided for in Section 9 of the Act.
9 Strauss Stores Corp , Case No. 2-RC-1143.
STRAUSS STORES CORPORATION 453
A few days after the last meeting between Farmer and representatives of the
employees , described above, the employee representatives were again called to
a meeting by Farmer . Farmer announced that he had met Sunshine and in-
vestigated his background , that he was of the opinion that Sunshine was not a
reliable person and that the men had not chosen wisely in selecting a bargaining
representative. He added that he would not deal with Local 830 nor with Local
804. The employees replied that they could not see any solution. Farmer
responded that there must be a solution. An employee representative then
asked Farmer if he meant a company union. Farmer replied : "No, a company
union is no good. We have had one. It doesn't work out." Another employee
representative asked Farmer if he meant that the employees should form an
independent union, and Farmer replied : "Yes, why not ? Yes, that is an idea.
After all, why should the shop employees spend an amount of $10,000 a year in
dues to just some union men when they could keep it and bank it and hold it
as a fund for themselves?" When the employee representatives demurred,
Farmer said : "Well, after all, what is a union? Men out of a job. So they
start collecting dues, and that is a union. Why can't you fellows do it?
Why can't you fellows go ahead and form your own union, a separate, inde-
pendent union? Choose a name, get a charter." Farmer said he would advise
the employees about getting a charter, and that he "had a hundred of the
damn things" around his office, and that it was a simple matter. He further
stated • "You go out and hire a hall and put a sign on it, such and such a union.
You come into me as a body. I will sign a contract for 3 or 4 years. You can
build up your sum. Ask for good terms. I will give them to you." The em-
ployee representatives replied that getting a charter, hiring a hall, and retain-
ing an attorney would cost money. Farmer replied : "No, labor lawyers are
pretty cheap They are not too expensive." 10 The employee representatives
protested that they would need immediate cash. An employee representative
estimated that it would require about $1,000, and asked Farmer if he would
lend that much money to the employees. Farmer replied : "Yes, I would loan
you $1,000." The employee representatives then told Farmer that they would
explore the matter and report back to him
The employee representatives then took an informal poll of their fellow
workers, and determined that the employees were not favorably inclined toward
an independent union. A few days later, Farmer called in three of the employee
representatives-Michael Widico, George Levine, and Paul Giambalvo-and
inquired if they had spoken to the other employees about an independent union.
Each of the three replied individually that, so far as he could determine, the
men were not favorably disposed toward the idea of an independent union.''
Within the next few days, Victor DeLizia, the Respondent Company's upstairs
manager, asked Widico if he had sounded out the thought of an independent
union, and whether he considered it a good idea . The record does not show
Widico's reply.l2
"Levine , one of the employee representatives present at this meeting, testified that he
asked Farmer if the employees could get their own lawyer , and the Farmer answered that
that would not be necessary, and that he ( Farmer ) would take care of that This part of
Levine's testimony is not credited.
11 Levine testified that all the meetings between Farmer and the employee representatives
"took place quite some time before March 30 " Although Widico placed the time of one
of the meetings as Aptil, his testimony in this respect is not credited. It is found that
all the meetings took place before the end of March 1949.
12 Widico testified that he discovered that DeLizia had asked the same question of several
other employees , and that he had also discovered that Norman Stoller, the warehouse man-
ager, had interrogated employees on another floor in a similar manner As this testimony
was obviously hearsay and was not corroborated, no finding NN ill be based thereon.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent Company and Local X530 resumed contract negotiations during
March 1949. Early In April 1949, they executed a written agreement which pro-
vided for a wage increase and other modifications of the 1948 contract , not here
material ." As modified , the 1948 agreement was "in all respects confirmed,
ratified, and approved." 14
On March 30 and April 6, 1949, incidents occurred involving George Levine
which will be described in more detail hereafter.
Early in March 1950 , the employees of the Respondent Company who were
members of Local 83015 voted to transfer their membership to '65' in accord-
ance with the arrangement described in Section II, above, Thereafter, on
March 9, 1950, the Respondent Company and '65' entered into a collective bar-
gaining agreement which is still in effect, covering , among others , the Respond-
ent Company's warehouse employees.
B. Interference, restraint, and coercion
The complaint alleges that the Respondent Company, from on or about Feb-
ruary 1949, interrogated its employees concerning their union affiliations and
activities and suggested and encouraged, by promises and offers of financial
assistance and other benefits, that they form an independent union. It is clear,
from the facts outlined above, that Farmer suggested to the employee repre-
sentatives that they form an independent union and offered to advise them
about obtaining a charter. He also offered to sign a contract with such an
independent union for 3 or 4 years, and indicated that he would give the em-
ployees "good terms." Furthermore, he expressed his willingness to lend the
employees $1,000 to finance the independent union's formation.
The Respondent Company maintains that it committed' no overt act with
respect to the formation of an independent union, and that it did not actually
k nd any money to the employees for that purpose. It argues that there was
"merely general talk about a plan, which they were merely mulling over in their
minds. It was just an idea that they were considering together." This con-
tention lacks merit. It is perfectly clear from the record that Farmer did, in
fact, offer to lend a specific amount of money to the employees for a specific pur-
pose, namely, for the formation of an independent union. While an employer
undoubtedly may, as pointed out by the Respondent Company, make suggestions
l' The complaint alleges that the modification agreement was executed "on or about
March 28, 1949." The contract, on its face, purports to have been signed on March 28,
1949 However, it is found that the 1949 contract was actually executed early in April
1949, but was dated back to March 28, 1949, for reasons not appearing on the record.
This finding is based on the following: (1) Widico's testimony that in May or June 1949,
Leonard S. Strauss, vice president of the Respondent Company, told the assembled em-
ployees that the Respondent Company had a contract with '65' (sic), and that this con-
tract had been dated back; (2) the testimony of Harry Busch, an organizer for '65',
that on March 30, 1949, Local 830 was negotiating with the Respondent Company, and
that on April 6, 1949, the contract had already been signed ; and (3 ) a telegram sent
by an organizer of Local 830 to a member of Local 830' s negotiating committee for the
Respondent Company calling a meeting for 9 p m . on March 28, 1949, "to act on manage-
ment's newest written proposals."
14 The 1949 contract was signed by Farmer on behalf of the Respondent Company,. and
by Louis Basis, manager, on behalf of Local 830; the members of Local 830 's negotiating
committee did not sign. Indeed, Widico, a member of the negotiating committee , testified
that he had never seen the contract, had never been accorded an opportunity to vote
as to whether or not it should be presented to the members for their approval, and that
he first became aware of its existence in April 1949 when he discovered that he had been
given a wage increase.
15 The warehouse employees of the Respondent Company who had joined Local 804 in
February or March 1949, had thereafter continued to retain their membership in Local 830.
STRAUSS STORES CORPORATION 455
to its employees concerning self-organization, and may advise them about the
characteristics of the union they have chosen and its leaders, the Respondent
Company here went much further. By offering the employees material aid as
an inducement to form an independent union at a time when both Local 804 and
Local 830 were seeking to organize them, the Respondent Company exceeded the
bounds of permissible conduct. Moreover, Farmer's interrogation of Widico,
Levine, and Giambalvo concerning the employees' reaction to the proposal to form
an independent union and DeLizia's interrogation of Widico concerning Widico's
opinion of an independent union constituted additional violations of the Act.1e Ac-
cordingly, it is found that, by Farmer's offer to lend the employees $1,000 for
the purpose of forming an independent union, his offer to advise them with
respect to obtaining a charter, his offer to sign a 3- or 4-year contract with an
independent union containing "good terms," his interrogation of Widico, Levine,
and Giambalvo, and DeLizia's interrogation of Widico, the Respondent Com-
pany, during February and March 1949, interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
in violation of Section 8 (a) (1) of the Act!'
C. The legality of the contract of April 1949
The contract of February 2, 1948, between the Respondent Company and Local
830 contained the following clauses:
1. .. . The Employer further agrees that it will employ members of the
Union, except as herein provided.
4. D. It is further agreed that new employees shall be required to become
members of the Union in good standing after thirty (30) days of continuous
employment and the Union agrees that it will accept such new employees into
membership on the same terms as any other applicants.
As has been pointed out above, this contract was "confirmed, ratified and ap-
proved," with modifications not here material, in April 1949, by a written agree-
ment executed by the Respondent Company and Local 830
The 1948 contract, having been executed after the effective date of the Labor
Management Relations Act of 1947, is subject to the restrictions imposed by
amendments contained therein. In order to determine the legality or illegality
of the above-quoted clauses, it is therefore necessary to examine the statutory
requirements of the Act, as amended, with respect to contracts providing for
union security. Section 9 (e) of the Act, as amended , provides for Board-
conducted elections and certifications of authority to bargain with respect to
union security. Section 8 (a) (3) of the Act, as amended, in effect prohibits
discrimination with respect to hire or tenure of employment to encourage or
discourage membership in any labor organization, and contains the following
proviso :
11 Standard -Coosa-Thatcher Company , 85 NLRB 1358 ; Empire Pencil Company , Division
of Hassenfeld Bros., Inc ., 86 NLRB 1187 ; and Joy Silk Mills v. N. L. R. B., 185 F. 2d 732
(C. A. D. C ), decided November 2, 1950.
" No determination is made as to whether or not the Respondent Company committed'
additional violations of Section 8 (a) (1) by: ( 1) Farmer's statement to the employee
representatives that he would not negotiate either with Local 830 or with Local 804; or
(2) executing a collective bargaining agreement with Local 830 on March 28, 1949, at a
time when Local 804' s representation petition was pending before the Board , as this
conduct was not alleged in the complaint as constituting additional violations of the Act.
Farmer's statement that the employees had not chosen wisely in selecting their bar-
gaining agent , his statement that Sunshine was not a reliable person, and his intimation
that '65' was not "an American union" are found to be protected expressions of opinion
not violative of the Act.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. . . nothing in this Act . . . shall preclude an employer from making an
agreement with a labor organization . . . to require as a condition of
employment membership therein on or after the thirtieth day following
the beginning of such employment or the effective date of such agreement,
which ever is the later, . . . if, following the most recent election held as
provided in section 9 (e) the Board shall have certified that at least a
majority of the employees eligible to vote to such election have voted to
authorize such labor organization to make such an agreement . . . (emphasis
supplied).
Thus, an election under Section 9 (e) and a resulting Board certificate are
ordinarily prerequisites to the execution of a valid union-security provision.
The Board's records, of which I have taken judicial notice," show that neither
of the Respondent Unions has been certified by the Board as a labor organiza-
tion authorized to bargain with the Respondent Company with respect to union
security. The 1948 contract therefore clearly violated the statutory require-
ments. The mere existence of such a provision acts as a restraint upon those
employees desiring to refrain from union activities within the meaning of
Section 7 of the Act 19 Moreover, by assenting to an unlawful union-security
clause, the Respondent Company lent its support to Local 830 in recruiting and
-maintaining its membership.
As the 1948 agreement was executed more than 6 months prior to the filing
-and service of the charges herein, 2' no finding of unfair labor practices will be
based thereon. However, after the Respondent Company terminated the con-
tract of 1948, the parties reestablished their bargaining relationship in April
1949, a date well within 6 months prior to the filing and service of the charges.
Thus, new life was breathed into the illegal union-security provisions.
It is found that in April 1949, by renewing, continuing, and reaffirming its
agreement with Local 830 which contained illegal union-security provisions, the
Respondent Company imposed a restraint upon those of its employees who
-desired to refrain from union activities within the meaning of Section 7 of the
Act, as amended, and thereby violated Section 8 (a) (1) of the Act. I further
find that, by the said acts, the Respondent Company lent support and assistance
to Local 830 in recruiting and maintaining its membership and coerced its em-
ployees to become and remain members of Local 830, thereby violating Section
8 (a) (2) of the Act.21 Accordingly, the Respondent Company's motion to dis-
miss the complaint is denied as to violations of Section 8 (a) (1) and (2).n
11J. S Abercrombie Company, 83 NLRB 524, petition for review denied, 180 F 2d 578
(C A. 5).
19 C. Hager of Sons Hinge Manufacturing Company, 80 NLRB 163
f0 The charge against the Respondent Company was served on May 27, 1949, and that
against the Respondent Unions on May 26, 1949
21 Julius Resnick, Inc, 86 NLRB 38; and Salant of Salant, Incorporated, 87 NLRB 215.
22 While the complaint also alleged the execution of the contract of March 28, 1949,
-as violation of Section 8 (a) (3) of the Act, I find it unnecessary to pass upon this issue.
Whether predicated upon a violation of Section 8 (a) (1), or of Section 8 (a) (3), or
both, the remedy hereinafter recommended is necessary in order to effectuate the policies
of the Act. Accordingly, the Respondent Company's motion to dismiss the complaint
is granted as to the alleged violation of Section 8 (a) (3) only. See Pacific Maritime
Association, et at ., 89 NLRB 894
The Respondent Company's attorney stated at oral argument that the contract was
executed "after bitter and lengthy, protracted negotiations and deliberations by both
sides. " Assuming, without deciding that the record indicated that hostility existed
between Local 830 and the Respondent Company, such fact is not inconsistent with a
finding that the Respondent Company, by renewing a contract with Local 830 which
STRAUSS STORES CORPORATION 457
With respect to Local 830, I find that when it executed the 1948 contract, and
when it renewed that contract in April 1949, it,intended that the entire contract,
including the unlawful union-security provisions, would be enforced to the end
that employees failing to acquire or retain union membership would be dis-
charged pursuant to its terms n Furthermore, it is beyond question that such
enforcement of the unlawful union-security provisions would constitute discrim-
ination in violation of Section 8 (a) (3) 24 It is accordingly found that, by
renewing the 1948 contract containing unlawful union-security provisions, with
the intention that such provisions be enforced, Local 830 joined with the Re-
spondent Company in creating conditions which would result in future dis-
crimination, and that it thereby attempted to cause the Respondent Company to
discriminate against employees, in violation of Section 8 (a) (3) of the Act,
thereby violating Section 8 (b) (2) of the Actn The Respondent Unions'
motion to dismiss the complaint is therefore denied, insofar as it alleges that
Local 830 violated Section 8 (b) (2) of the Act.
1) The resyonsibihty of '65' and its staters
I turn now to the question of the responsibility of '65' for the unfair labor
practices committed by Local 830 in April 1949, when Local 830 renewed its con-
tract with the Respondent Company, containing illegal union-security provisions.
From the facts outlined in Section II, above, it is evident that the resolution
adopted by the membership of Local 830 on March 22, 1949, was the first step
in effectuating a close working arrangement between Local 830 and '65'. As has
been pointed out, the General Council of '05' approved the action of Local 830's
membership on March 28, 1949, and the treasury of Local 830 was paid over to
'65' several days later. However, from April 1949, until early March 1950,
the contract with the Respondent Company continued to exist in the name of
Local 830, and was administered entirely by Local 830. The policies of Local 830
continued to be determined by the members of Local 830, with the advice and
assistance of the leadership of '65'. Indeed Victor Rabinowitz, attorney for
'65', a witness for the General Counsel, testified without contradiction that the
Respondent Company did not recognize '65' as the bargaining representative of
its warehouse employees until the parties began to negotiate for the 1950 con-
tract. While cooperation between Local 830 and '65' undoubtedly existed, there
is insufficient evidence in the record to sustain the contention of the General
Counsel that, prior to March 1950, '65' had assumed "effective control" over the
operations of Local 830. It follows, therefore, that '65' cannot be held respon-
sible for the unfair labor practices committed by Local 830 in April 1949, except
contained illegal union-security provisions, contributed unlawful support and assistance
to Local 830.
The Respondent Unions contend that it is inconsistent to find that Farmer discouraged
membership in Local 830 by offering benefits to the employees if they would form an
independent union, and virtually simultaneously lent his support to Local 830 by renewing
the contract with Local 830 which contained illegal union-security provisions. I find
no merit in this contention. In my opinion, there is nothing inconsistent in a finding
that Farmer first tried to dissuade the employees from continuing as members of Local
830 and later, when his efforts in this direction failed to bear fruit, renewed the contract
which gave Local 830 a preferred position.
23 Although there is no evidence in the record that the union-security provisions have
been enforced, to find otherwise would be to find that the parties entered into an agree-
ment which they never intended would have any meaning. Such a finding would be-
contrary to the realities of the collective bargaining relationship. Acme Mattress
Company, Inc, 91 NLRB 1010, footnote 7.
24 See, for example, Clara-Val Packing Company, 87 NLRB 703.
25 Acme Mattress Company, Inc., supra.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by virtue of the fact that '65' may have become the successor to Local 830,
with respect to the employees concerned herein.
It will be recalled that in March 1950, the Respondent Company's warehouse
employees voted to transfer their membership from Local 830 to '65'. Since
then, Local 830 has not represented any of the Respondent Company's warehouse
employees. This action of the employees, followed as it was by the Respondent
Company's recognition of `65' as the collective bargaining representative of
its warehouse employees, effectively established `65' as the successor to Local
830, so far as the employees involved herein are concerned. In view of the close
cooperation between '65' and Local 830 after the end of March 1949, it is resason-
able to infer that '65' succeeded Local 830 as the bargaining representative
of the Respondent Company's warehouse employees in March 1950 with full
knowledge that the 1948 contract between the Respondent Company and Local
830, as modified and continued in 1949, contained illegal union-security provisions.
It is so found.
Under well-established principles, where an employer takes over a business
with knowledge of. his predecessor's unfair labor practices, the successor as-
sumes the obligation to rectify those unfair labor practices, even though he
did not originally participate in the proscribed conduct' This principle ap-
plies equally to successor labor organizations. Thus, '65' assumed in March
1950 the duty to remedy the unfair labor practices previously committeed by its
predecessor, Local 830 This obligation has been discharged.
Rabinowitz testified without contradcition that winthin a month after '65'
began to take over various contracts previously held by Local 830 as they
expired, `65' adopted a policy of dropping from the renewed contracts any
union-security clauses which were inconsistent with the Act. In accordance
with this policy, when the contract with the Respondent Company with respect
to its warehouse employees was renewed in the name of `65' in March 1950, the
parties omitted the illegal union-security provisions. In short, '65' did every-
thing possible, as soon as it was practical to do so, to eradicate the offending
contract clauses. Under these circumstances, I perceive no justification for
branding `65' as a violator of the Act. Nor do I conceive that '65' was in
the least remiss in fulfilling its statutory obligations. Accordingly, I find that
`65' has not violated Section 8 (b) (2) of the Act. The motion of the Re-
spondent Unions that the complaint be dismissed is therefore granted, insofar
as it applies to '65'.
There remains the problem of the present status of ' 65' as the bargaining
representative of the employees involved herein. It has been found that Local
830 was the recipient of illegal aid and support contributed by the Respondent
Company, which assisted Local 830 in recruiting and maintaining its member-
ship. When '65' succeeded to Local 830's bargaining rights in March 1950, it
,did not enter the picture as a total stranger. On the contrary, `65' stepped
into Local 830's shoes in pursuance of an arrangement agreed upon almost a
year before and carried out as planned . There was no hiatus in the transition
.of bargaining rights from Local 830 to '65', and `65' was inexorably identified
26 N. L. R B. v. National Garment Company , et at , 1 66 F. 2d 233 ( C A. 8), cert. den.
334 U S. 845 ; Charles F. DeBardeleben, et at. v. N. L. R. B., 135 F 2d 13 (C. A. 5) ;
N. L R B. v. Adel Clay Products Company, et al, 134 F. 2d 342 (C. A . 8) ; N. L. R. B. v.
Weirton Steel Company, 135 F. 2d 494, 499 ( C A. 3) , Autopart Manufacturing Company,
91 NLRB 80 and 92 NLRB 30; Eva-Ray Dress Manufacturing Company , Inc, et at.,
38 NLRB 361 ; The Alexander Milburn Company , 78 NLRB 747 ; M. M. Joffee Company,
et al, 74 NLRB 1568; and compare N. L R. B. v. Colten, 105 F. 2d 179 (C A. 6) :
N. L. R B. v. E. C. Brown Company, et at, 184 F. 2d 829 (C. A. 2 ), decided October
31, 1950.
STRAUSS STORES CORPORATION 459
-with Local 830 in the minds of the employees." It is clear that after March 1950,
'65' succeded to the preferred position previously occupied by Local 830, and
thus reaped the benefit of the unlawful contract provisions. Under these cir-
cumstances, '65' inherited the infirmities of Local 830. Accordingly, it is found
that '65' has been since March 1950, and still is, an illegaly assisted and sup-
ported labor organization.
E. Alleged restraint and coercion
The complaint, as detailed in the bill of particulars, alleges that the Respond-
ent Unions, through their agents, Scotty Willen and Harry Busch, threatened
to inflict and did inflict bodily injury upon certain of the Respondent Company's
employees on March 30 and April 6, 1949, for the purpose of compelling them to
abandon or reject Local 804 and/or support the Respondent Unions. For con-
venience, the evidence relating to this allegation of the complaint will be divided
into two parts, one dealing with the events of March 30, and the other with the
incident of April 6.
1. The events of March 30, 1949
George Levine, a warehouseman employed by the Respondent Company, was
a member of executive board of Local 830 and shop steward for the Respond-
ent Company's warehouse until February 1949. He was also a member of
Local 830's negotiating committee for the Respondent Company's warehouse.
As such, he attended the negotiation meetings between the Respondent Com-
pany and Local 830 in January and February 1949, previously described. When
Farmer suggested that the employees seek another union, Levine was one of the
employees who contacted Local 804 and arranged for Sunshine to meet the
warehouse employees. In February or March 1949, Levine was among those
employees who joined Local 804.
Robert Denis Willen n was, in 1949, an organizer for Local 830 whose duties
included the administration of Local 830's contract with the Respondent Com-
pany, insofar as the warehouse employees were concerned. In February or
March 1949, Willen learned of Levine's activities on behalf of Local 804. During
this period, Willen visited Levine at Levine's home on several occasions and
attempted to persuade Levine to remain loyal to Local 830 and to withdraw
from any activities on behalf of Local 804. In the course of these visits to
Levine's home, Willen made no threats of any kind to Levine.
During the same period, Harry Busch was an organizer for '65' assigned to
organizing the employees of Arch Bilt Corrugated, a plant near the Respondent
Company's warehouse, the employees of which were members of '65.' As
Busch was a more experienced organizer than Willen, and as Local 830 and '65'
were cooperating at this time, Willen frequently invited Busch to accompany
him on his regular visits to the warehouse of the Respondent Company, and to
advise him with respect to organizational policies. On March 30, 1949, Willen,
accompanied by Busch, made one of his regular, visits to the Respondent Com-
pany's warehouse, during the course of which Willen and Busch saw Levine.
As the testimony of the three men differs with respect to what occurred at that
time, the testimony of each will be set out in some detail.
27 An example of employee confusion of the two unions is found in Widico's testimony
that Strauss announced in May or June 1949 that the Respondent Company had a contract
with '65'. At that time, the contract was, in fact, with Local 830. The test as to
whether or not a challenged organization is employer assisted is not an objective one,
but rather subjective , from the standpoint of the employees . Compare N . L. R. B. v.
Thompson Products, Inc., 130 F. 2d 363, 368 (C. A. 6).
28 Referred to in the record and in the bill of particulars as Scotty Willen.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Levine, a witness for the General Counsel, testified that he had never,seen
Busch before March 30. He further testified that on March 30, during working
hours, Willen and Busch approached him together at the warehouse. Two of
Levine's fellow workers, George Alzheimer and Rocco Rivello, were nearby, but
not within hearing distance. According to Levine, Busch said to Levine : "I
want to talk to you for a minute." Levine replied : "I am busy. I am working
now." Then Busch, pointing his finger at Levine, said: "Within a few days they
are going to find your body in the gutter. Members from Arch Bilt Corrugated
will come and kill you," and that "everybody in the warehouse" was going to lose
his job. Willen said nothing. Immediately after this incident, Levine reported
what had happened to Herman Mintz, the Respondent Company's sales
manager.29
Willen, a witness for the Respondent Unions, testified that on March 30,
he and Busch visited the Respondent Company's warehouse together. There
they met Levine and another employee of the Respondent Company, whose
name Willen did not remember. A conversation followed in which Willen,
Busch, Levine, and the other employee all participated. Willen reviewed the
conversations which he had had with Levine in Levine's home, and generally
appealed to Levine to remain loyal to Local 830. According to Willen, "There
was arguments back and forth as we proposed one thing and George (Levine)
would have another opinion or an addition to the opinion. This kept up for
some time " Finally, Levine and the other employe said : "Look, we got work
to do. We are going to take off," and thereupon left. Willen estimated that
the conversation lasted approximately 15 minutes. He further testified that,
during this conversation, he did not hear Busch make the threats attributed to
him by Levine. On direct examination, Willen indicated that he might have
raised his voice. Later, during examination by the Trial Examiner, Willen
described the conversation as "friendly," and testified that there was no loss of
temper.
Busch, a witness for the Respondent Unions, testified that he had accompanied
Willen to the Respondent Company's warehouse 5 or 6 times during the period
around March iii, and during these visits accused certain members of Local 830's
negotiating committee, including Levine, of "playing the company's game of
splitting," and told them they should "mend their ways or resign." He testified
that Levine's position was always one\of vacillation, never taking a definite
stand At first, Busch assumed that Levine did not know better, but after 5
or 6 conversations with Levine at different times, Willen began to distrust Levine
and became convinced that he was "in conversation with somebody for the com-
pany and carrying out their dictates." - Busch further testified that on March
30 he accompanied Willen to the Respondent Company's warehouse and spoke
to Levine, accusing Levine of knowingly or unknowingly being an agent of the
Respondent Company. Levine denied the accusation, and said that he had not
yet made up his mind whether to remain loyal to Local 830 or not, and that he
needed time. Busch, pointing out that time works against the interests of the
employees and plays into management's hands, urged Levine to reach a quick
decision. He further pointed out to Levine that the neighboring plant of Arch
Bilt Corrugated was organized by `65,' a "sister local" of Local 830, and that
if the employees of the Respondent Company remained loyal to 830, they would
have an ally nearby at Arch Bilt. Busch estimated that the conversation lasted
10 or 15 minutes. He denied making the threats attributed to him by Levine.
ss Neither Rivello nor Mintz testified. Although Alzheimer testified, his testimony
contained no reference to the incident of March 30.
STRAUSS STORES CORPORATION 461
Willen impressed me as a forthright and accurate witness. I therefore adopt
his version of the conversation, which was substantially corroborated by Busch,
as the most accurate account of the occurrence. Accordingly, I find that Busch
did not make any threatening statements to Levine on March 30, 1949.
2. The incident of April 6, 1949
Several witnesses for the General Counsel and several witnesses for the Re-
spondent Unions testified with respect to the incident of April 6. Although the
various witnesses did not agree in all details, together they gave a fairly com-
plete picture of the events which transpired. From the entire record, it appears
that the occurrence of April 6 took place substantially as follows :
At 12 o'clock noon, the employees of the Respondent Company stopped work
for the usual lunch hour. As employees Alzheimer, DePierro, and Levine left
the warehouse to go to lunch, Willen was waiting on the sidewalk in front of
the entrance, and approached them. He urged them, as he had done before with
Levine, to remain loyal to Local 830. The employees were reluctant to listen
to Willen's importunities. Nevertheless, Willen was persistent in speaking to
Levine. According to Willen, "we were going a bit hot and heavy." This con-
versation lasted less than 5 minutes In the meantime, Busch had gone to the
nearby plant of Arch Bilt Corrugated on one of his regular visits to that plant.
At 12 o'clock noon, Busch left the Arch Bilt plant for the purpose of going to
lunch, accompanied by several workers from that plant3° Their route to the
place where they intended to eat lunch led past the warehouse of the Respondent
Company. As they passed the warehouse, Busch saw Willen talking to Levine,
and went over to them. He told Levine that, as the Respondent Company had
signed a contract with Local 830, Levine should stick with Local 830, and aban-
don any efforts to interest his fellow workers in any other union. Employees of
the Respondent Company and of Arch Bilt gathered around, closely packed in a
small space. An argument ensued, 'voices were raised, and eventually matters
built up to a crescendo. As tempers flared, Busch called Levine a "phony
bastard" or a "union breakers" ; Levine retorted by terming Busch a "Communist
rat." At this, Busch took a step or two toward Levine. Levine raised his arms
with his palms open and, in doing so, dislodged Busch's glasses. The spectacles
fell to the ground and were broken 91 Busch then struck Levine several blows
on the face and head with his fist, and Levine struck back 32 While Busch and
Levine were fighting, Willen moved toward them, but was restrained by De-
Pierro, who said : "Let's stay out of it." Willen replied that he was not looking
for trouble. A general altercation followed, in which Alzheimer was hit in the
mouth by an employee of Arch Bilt, and DePierro was also struck, presumably
likewise by an Arch Bilt man. The melee lasted only a few minutes, and the
combatants were soon separated by others in the crowd. By this time, other em-
ployees of the Respondent Company, including Paul Giambalvo, had come out
of the warehouse. They saw Busch and the Arch Bilt employees walking back
toward the Arch Bilt plant. Giambalvo called Busch to come back, and Busch
80 The testimony of Levine , Alzheimer, Willen, and Busch that Busch was accompanied
by a group of Arch Bilt workers is adopted, and DePierro's testimony that Busch 'came
down the street alone followed by a group of Arch Bilt workers is rejected.
n Alzheimer 's testimony that Busch 's glasses were still on when Busch struck Levine
with his fist is deemed inaccurate and is not credited. 1
31 There is some testimony that Levine was knocked down against a fence, and that
his face was cut and bleeding . However, several witnesses testified that they did not see
Levine knocked down or bleeding. I deem it unnecessary to resolve this conflict.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did so. Giambalvo then said to Busch : "If you feel so strong with the crowdl
you have behind you, why don't you start something now? We are a little more
down here, now." However, Busch declined to resume the fight.
3. Conclusions as to restraint and coercion
Section 8 (b) (1) (A) of the Act provides that it is an unfair labor practice
for a labor organization or its agents "to restrain or coerce employees in the
exercise of the rights guaranteed in Section 7." Obviously, not every altercation
between a union agent and an employee necessarily constitutes a violation of
Section 8 (b) (1) (A) of the Act. In order to determine whether or not this
section of the Act has been violated, it is necessary to ascertain whether the
acts of the union agent reasonably tender to restrain or coerec the employees in
question in the exercise of the rights guaranteed them by the Act.
The General Counsel maintains that Willen and Busch had agreed in advance
on the assault of April 6, that the employees of Arch Bilt were enlisted for this
purpose, and that Busch did not leave the Arch But plant with the intention of
going to lunch, but rather for the express purpose of assaulting those employees.
of the Respondent Company who were not loyal to Local 830. He contends that
Willen was assigned the task of holding Levine until Busch and the employees of
Arch Bilt arrived on the scene. To substantiate this contention, the General
Counsel points to the testimony of Levine that, during his conversation with-
Willen, the employees of the Respondent Company did not want to listen to
Willen, and kept walking away, but that Willen kept following them and stood
in front of Levine in order to block Levine's exit. Willen did not recall that
he had made any attempt to stop Levine from leaving. but admitted that he
"must have been very persistent" in talking to Levine. Moreover, Willen
credibly testified that he did not even know that Busch was in the neighborhood
at the time. Furthermore, Busch testified that he did not remember having
seen Willen on the morning of April 6, prior to the events described herein.
The General Counsel also points to the fact that, after the fight was over,
Busch and the Arch Bilt employees did not continue to lunch, but returned in
the direction of the Arch Bilt plant. However, Busch explained that he de-
cided to return to the Arch Bilt plant for the purpose of washing himself and
arranging his hair, which had become mussed during the course of the scuffle.
Moreover, it is significant that Busch refused to accept Giambalvo's invitation
to continue the fight. Finally, it is significant that Willen made attempts to
break up the fight, and that the fight did, in fact, break up within a few
minutes. Under all the circumstances, I reject the contention of the General
Counsel that the attack on the employees of the Respondent Company was in
any way prearranged.
Did Busch's fight with Levine nevertheless constitute restraint and coercion
of Levine? In my opinion, this question must be answered in the negative.
The picture presented is one of strained relations between Busch and Levine,
arising out of Levine's activities on behalf of Local 804. Busch was extremely-
anxious to bring Levine, and other employees of the Respondent Company, back
into the fold. He encountered some reluctance on Levine's part. By April 6„
feelings were running high and the situation had become explosive. At this
point, into the powder keg was dropped a lighted match in the form of name
calling. Busch termed Levine a "union breaker" or a "phony bastard" andL
Levine replied in kind by calling Busch a "Communist rat." The resentment
which Busch felt at this epithet caused him to flare up and approach Levine.
Levine, interpreting this move as hostile, threw up his arms to protect himself-
STRAUSS STORES CORPORATION. 463
Busch 's glasses were knocked to the ground." Busch reacted immediately by
striking Levine.. In this posture of the case, it is clear that the violence was
set off, not by Busch's attempt to intimidate or coerce Levine into remaining
loyal to Local 830, but by mutual name calling and by the accidental knocking
off of Busch's eye glasses. The combat between the Arch Bilt men and
Alzheimer and DePierro was touched off by the Busch-Levine fight, and must
also be regarded as spontaneous. This, in my opinion, falls short of con-
stituting a violation of the Act. Accordingly, the Respondent Unions' motion
to dismiss the complaint is granted, with respect to the allegations that they
violated Section 8 (b) (1) (A) of the Act.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Local 830 and the Respondent Company set forth in Section
III, above, occurring in connection with the operations of the Respondent Com-
pany described in Section I, above, have a close, intimate, and substantial rela-
tion 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
Since it has been found that the Respondent Company and Local 830 engaged
in and are engaged in unfair labor practices, it will be recommended that they
cease and desist therefrom and take certain affirmative action designed to effecu-
ate the policies of the Act.
It having been found that the Respondent Company has engaged in certain acts
of interference, restraint, and coercion, it will be recommended that the Respond-
ent Company cease therefrom.
It has further been found that-the Respondent Company violated Section
8 (a) (1) and (2) of the Act by renewing, continuing, and reaffirming its 1948
contract with Local 830, containing illegal union-security provisions. The effect
of such violation was to coerce its employees into becoming and remaining mem-
bers of Local 830, a vice which Section 8 (a) (3) and Section 9 (e) were intended
to avoid Accordingly, I shall recommend that the Respondent Company cease
and desist from such conduct. Normally, it would also be recommended that
the Respondent Company cease and desist from giving effect to the illegal union-
security provisions of the 1948 contract. However, it would serve no useful
purpose to do so here, as that contract has now expired and has been replaced
by a new contract with `65,' which does not contain the objectionable union-
security provisions.
The General Counsel requests that the Respondent Company be ordered to
cease and desist from enforcing its present contract with '65' in its entirety.
Relying on the Salant and Resnick cases,' he points out, that, where there are
unlawful union-security clauses in an agreement , the Board has not been con-
tent to order the parties to cease performing the offending clauses, but has
gone farther and prohibited the enforcement of the entire contract. On the
other hand, the Respondent Unions argue vigorously that, as the present con-
33 Referring to Levine raising his hands and knocking off Busch's glasses, Busch testified :
"I don't know whether or not he meant it intentionally ," and "my glasses were thrown
off, which is not difficult ." It Is found that Levine knocked off Busch's glasses
accidentally.
'" In view of my disposition of the allegation of violation of Section 8 (b) (1) (A) of
the Act, it is unnecessary to pass upon the contention of the Respondent Unions that
Busch was not an authorized representative of either `65' or Local 830 at the time
11 See footnote 21, supra. See also Pacific Maritime Association , et al., 89 NLRB 894.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract contains no illegal union -security clauses, it should not be disturbed.
While admitting that the Salant and Resnick cases stand for the proposition
for which the General Counsel cites them, the Respondent Unions nevertheless
rely upon decisions in which a more limited remedy was applied , particularly
the Pinkerton and Clara-Val" cases, in which the Board merely ordered the
parties not to enforce the illegal clauses, but otherwise permitted the contracts
to stand. The Respondent Unions contend that there are therefore two diver-
gent lines of decisions with respect to the proper remedy to be applied. At first
blush , this argument seems persuasive . Upon careful examination of the cited
authorities , however, it appears that the Pinkerton and Clara-Val cases, unlike
the instant case, involved no allegations of the violation of Section 8 (a) (2)
of the Act . The Resnick and Salant cases, on the contrary , were similar to the
instant case in that violations of Section 8 (a) (2) had'been found. I therefore
find no merit in the contention of the Respondent Unions. To permit the'
Respondent Company to continue contractual relations with `65' in the face of
a finding that `65' was an illegally supported and assisted labor organization
would subvert the policies of the Act . The effect of the coercive conduct would
not be eradicated were Local 830, or its successor union, `65 ,' permuted to
continue to enjoy a representative status strengthened by virtue of the illegal
contract . Therefore, in order to effectuate the purposes and policies of the
Act, it will be recommended that the Respondent Company withdraw recognition
from Local 830 and its successor labor organization , '65,' and cease giving effect
to its present contract of March 9, 1950, with `65,' or to any modification, ex-
tension, supplement , or renewal thereof, unless and until either of the said
organizations has been certified by the Board ." Nothing contained herein shall,
however, be deemed to require the Respondent Company to vary or abandon those
wage, hour , seniority , or other substantive features of its relations with its
employees , established in the performance of the said contract, or to prejudice
the assertion by the employees of any rights they may have under the said
contract.
In my opinion , the renewing , continuing, and reaffirming of the illegal union-
security provisions of the 1948 contract was a flagrant attempt by the Respond-
ent Company to avoid its statutory obligations. Such contract clauses clearly
constitute violations of the letter and spirit of the Act. I therefore find that
the unfair labor practices found are persuasively related to other unfair labor
practices proscribed and that danger of their commission in the future is to be
anticipated from the course of the Respondent Company's conduct in the past."
36 International Union, United Mine Workers of America, et al. (Jones & Laughlin
Steel Corporation, et al ), 83 NLRB 916; Clara-Val Packing Company, 87 NLRB 703;
Pinkerton's National Detective Agency, Inc., 90 NLRB 205 ; International Longshoremen's
and Warehousemen's Union (Waterfront Employers Association of the Pacific Coast),
90 NLRB 1021 ; National Union of Marine Cooks and Stewards (Pacific American Ship-
owners Association, 90 NLRB 1099. In the Longshoremen's and Marine Cooks and
Stewards cases, the Board did not pass upon the propriety of the Trial Examiner 's limited
remedy, as no exceptions were taken thereto.
21 The Respondent Unions argue that the entry of an order requiring the Respondent
Company to withdraw recognition from Local 830 and '65' unless and until certified
by the Board would leave the employees temporarily without a bargaining representative,
and would be "disasterous to the labor relations between the parties " In my opinion,
however, the slight disadvantage entailed in such a course is more than counterbalanced
by safeguarding the employees' freedom of choice through selection of a bargaining agent in
a secret election.
38 N L R B. v. Express Publishing Company, 312 U. S. 426. While the offending
provisions have been eliminated from the present contract, it Is significant that that
agreement was executed after the Respondents were served with copies of the charges
herein, alleging the former contract's Invalidity. Compare Salant & Salant, Incorporated,
supra.
STRAUSS STORES CORPORATION 465
The preventative purposes of the Act will be thwarted unless the order is co-
extensive with the threat. In order, therefore, to make effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair labor prac-
tices, and thereby to minimize industrial strife which burdens and obstructs
commerce, and thus effectuate the policies of the Act, I will recommend that
the Respondent Company cease and desist from in any manner infringing upon,
the rights guaranteed in Section 7 of the Act.
As it has been found that the Respondent Company has not violated Section
8 (a) (3) of the Act, it will be recommended that the complaint be dismissed,
insofar as it alleges that the Respondent Company violated that section of the
Act.
It has further been found that Local 830 has violated Section 8 (b) (2) of
the Act by renewing, continuing, and reaffirming the offending contract with
the Respondent Company. Accordingly, it will be recommended that Local 830
cease and desist therefrom. Like the Respondent Company, Local 830 has thus
flagrantly attempted to avoid its statutory obligations. There is danger that
Local 830 or its successor or successors may attempt in the future to obtain
similar illegal union-security arrangements with the Respondent Company, either
through contract provisions or otherwise. It will therefore be recommended
that Local 830 cease and desist from in any manner causing or attempting to
cause the Respondent Company, its- officers, agents, successors, or assigns, to
discriminate against employees or prospective employees in violation of Section
8 (a) (3) of the Act, as amended. This order will, of course, be binding upon
any successor or successors of Local 830, including 165.' as
As it has been found that Local 830 has not violated Section 8 (b) (1) (A)
of the Act, it will be recommended that the complaint be dismissed, insofar as
it alleges that Local 830 violated that Section of the Act.
As it has been found that '65' has not engaged in any unfair labor practices,
it will be recommended that the complaint be dismissed with respect to `65.'
Upon the basis of the foregoing findings of fact, and upon the entire record
in these cases, I make the following :
CONULusioNs OF LAW
1. Merchandise and Delivery Drivers and Employees, Local 804, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL; Retail and Wholesale Employees Union, Local 830 (Independent), formerly
known as United Retail and Wholesale Employees of America, CIO, Local 830;
and '65', The Wholesale, Retail and Warehouse Workers' Union of New York
and New Jersey, are labor organizations within the meaning of Section 2 (5)
of the Act.
2 By renewing, continuing, and reaffirming its contract of February 2, 1948,
with Retail and Wholesale Employees Union, Local 830 (Independent), formerly
known as United Retail and Wholesale Employees of America, CIO, Local 830,
thereby contributing assistance and support to the said labor organization
through the illegal provisions of the said contract, the Respondent Company
has engaged in, and is engaging in, unfair labor practices within the meaning
of Section 8 (a) (2) of the Act.
3. By the said acts, by interrogating its employees with respect to their union
affiliations, activities, and sympathies, and those of their fellow employees,
and by suggesting and encouraging, by promises and offers of financial assist-
ance and other benefits, that its employees form an independent union, the
3' Compare N. L R. B. v Hopwood Retvnning Company, Inc, et al., 104 F. 2d 302
(C A 2).
953841-52-vol. 94-31
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Company has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby
engaged in, and is engaging in, unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. By renewing, continuing, and reaffirming the said contract containing un-
lawful union-security provisions, with the intention that such provisions be
enforced, Local 830 joined with the Respondent Company in creating conditions
which would result in future discrimination, thereby attempting to cause
the Respondent Company to discriminate against employees in violation of
Section 8 (a) (3) of the Act, thereby violating Section 8 (b) (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent Company has not violated Section 8 (a) (3) of the Act.
7. Local 830 has not violated Section 8 (b) (1) (A) of the Act.
8. 165', The Wholesale, Retail and Warehouse Workers' Union of New York
and New Jersey, has not violated the Act.
[Recommended Order omitted from publication in this volume.]
COLUMBIA PICTURES CORPORATION, ET AL .1 and SOCIETY OF MOTION
PICTURE ART DIRECTORS, PETITIONER. Case No. 21-RC-125.
May 15, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Daniel J. Harrington,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed .2
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning
of the Act.
2. No question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks to represent employees in the classification of
set designer, illustrator, sketch artist, assistants, and apprentices, and
set model builder, assistants, and apprentices in the art departments
i Columbia Pictures Corporation , Loews, Incorporated (Metro-Goldwyn-Mayer),
Paramount Pictures Corporation , Republic Productions , Inc., RKO Radio Pictures, Inc.,
Twentieth Century Fox Film Corporation , Universal Pictures Company, Inc., and Warner
Brothers Pictures, Inc.
2 Exhibits consisting of a number of collective bargaining contracts between the Em-
ployers and the International Alliance of Theatrical Stage Employees and Moving Picture
Operators of the U. S. and Canada, AFL, hereinafter termed IATSE, were admitted in
evidence at the hearing by the hearing officer over the objection of the latter organization.
In the course of hearing , this decision of the hearing officer was appealed to the Board.
At that time the Board denied the appeal on the ground it would decide the case on the
entire record . At the completion of the hearing , the appeal was renewed . The appeal
from the ruling of the hearing officer is herewith denied for reasons , stated in paragraph
numbered 2 of the instant decision.
94 NLRB No. 72.