Surprise Candy Co.

National Labor Relations Board - Board Decisions

Feb 28, 1946

66 N.L.R.B. 1 (N.L.R.B. 1946)

In the Matter Of JACOB GARFUNKEL and HYMAN GARFUNKEL, CO-
PARTNERS, DOING BUSINESS UNDER THE TRADE NAME AND STYLE OF
SURPRISE CANDY COMPANY and UNITED CANDY AND CONFECTIONERY
WORKERS UNION, LOCAL 50, C. I. O. and CANDY & CONFECTIONERY
WORKERS UNION, LOCAL 452, A. F. OF L., PARTY TO TIIE CONTRACT
In the Matter Of JACOB GARFUNKEL AND HYMAN GARFUNKEL,
CO-PARTNERS, DOING BUSINESS UNDER THE TRADE NAME AND STYLE OF
SURPRISE CANDY COMPANY and SARA S. MCMAIION
Cases Nos. 2-C-5619 and 2-C-5683, respectively.-
Decided February 28, 1946
DECISION
AND
ORDER
On June 23, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in 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 Intermediate
Report annexed hereto. Exceptions to the Intermediate Report
were filed by Local 452; the respondents filed no exceptions. On
February 14, 1946, the Board at Washington, D. C., heard oral
argument, in which Local 452 and Local 50 participated.
The Board has reviewed the rulings of the Trial Examiner 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 of Local 452, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the addition noted below.
THE REMEDY
We have found that the respondents violated the Act by : (1)
making anti-union statements; (2) unlawfully urging and persuad-
ing their employees to withdraw from Local 65; (3) unlawfully
66 N. L . R. B., No. 1.
I
686572-46-2
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
urging and persuading their employees to withdraw from Local 50;
(4) vilifying and disparaging Local 65 and Local 50; and (5) re-
quiring that their employees, as a condition of employment, become
and remain members of Local 452. We have further found that the
respondents discriminatorily discharged employees Pauline Gross-
man because of her membership in and activities on behalf of Local
65, and Sara S. McMahon and Christina McMahon, because of their
membership and activities on behalf of Local 50.1 We have also
found that on or about August 21, 1944, and at all time thereafter,
the respondents refused to bargain collectively with Local 50, the
duly designated statutory representative; and that the respondents
assisted and aided Local 452 by signing a closed-shop contract, in-
cluding a check-off arrangement, at a time when Local 50 was the
exclusive bargaining representative.
Upon the entire record we infer and find that the respondents, by
their foregoing coercive course of conduct, and particularly by the
discriminatory discharges, have displayed an attitude of opposition
to the purposes of the Act. Because of the respondents' unlawful
conduct and the underlying purpose manifested thereby, we are
convinced and find that the unfair labor practices which they have
committed are persuasively related to the other unfair labor prac-
tices proscribed by the Act, and that danger of the commission in the
future of any or all of the unfair labor practices listed in the Act is
to be anticipated from the respondents' conduct in the past. The
preventive purposes of the Act will be thwarted unless our order
is coextensive with the threat .2 We shall therefore order the re-
spondents to cease and desist not only from the unfair labor prac-
tices herein found, but also from in any other manner interfering
with, restraining , or coercing their employees in the exercise of the
rights guaranteed in Section 7 of the tact. In addition, we shall
order the respondents to take the affirmative action recommended by
the Trial Examiner.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Jacob Garfunkel and
Hyman Garfunkel, co-partners, doing business under the trade name
1In agreement with the Trial Examiner , we find that by such discharges the re-
spondents discouraged membership in Local 65 and Local 50, respectively , and thereby
interfered with , restrained, and coerced their employees in' the exercise of the rights
guaranteed in Section 7 of the Act.
s See N. L. R. B . v. Express Publishing Company, 312 U. S. 426; May Department
Stores Company v. N. L. R. B., 326 U. S. 376,
SURPRISE CANDY COMPANY 3
and style of Surprise Candy Company, New York, New York, their
agents, successors and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Candy and Confection-
ery Workers Union, Local 50, C. I. 0., or any other labor organiza-
tion of their employees by laying off, discharging, or refusing to
reinstate any of their employees and from refusing to employ any
member of that union or in any other manner discriminating in
regard to the hire and tenure of employment or any term or condi-
tion of employment;
(b) Recognizing Candy and Confectionery Workers Union, Local
452, A. F. of L., as the representative of any of their employees for
the purpose of dealing with respondents concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment;
(c) Giving effect to their contract with Candy and Confectionery
Workers Union, Local 452, A. F. of L., or to any modification, ex-
tension, supplement or renewal thereof;
(d) Refusing to bargain collectively with United Candy and Con-
fectionery Workers 'Union, Local 50, C. I. 0., as the exclusive
representative of their employees in the unit heretofore found
appropriate, with respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment;
(c) In any other manner interfering with, restraining , or coercing
their employees in the exercise of their rights to self -organization,
to form labor organizations , to join or assist United Candy and
Confectionery Workers Union, Local 50, C. I. 0., or any other labor
organization , to bargain collectively through representatives of their
own choosing and to engage in concerted activities for the purpose
of collectively bargaining or other mutual aid or protection as guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Candy and Confectionery
Workers Union, Local 452, A. F. of L., as the representative of any
of their employees for the purpose of dealing with respondents con-
cerning grievances , labor disputes, wages, rates of pay , hours of
employment, or other conditions of employment;
(b) Reimburse each employee for membership dues or fees de-
ducted from his wages pursuant to the check-off provisions of the
contract with Candy and Confectionery Workers Union, Local 452,
A. F. of L., by payment to each of them of a sum of money equal
to the total of such dues or fees deducted from his wages;
(c) Offer to Pauline Grossman, Sara S. McMahon, and Christina
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McMahon immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their senior-
ity and other rights and privileges;
(d) Make whole Pauline Grossman, Sara S. McMahon, and
Christina McMahon for any loss of pay they may have suffered by
reason of respondents' discrimination against them by payment to
each of them of a sum of money equal to the amount each would
normally have earned as wages from the date of the discrimination
to the date of respondents' offer of reinstatement, less the net earn-
ings of each during said period;
(e) Upon request, bargain collectively with United Candy and
Confectionery Workers Union, Local 50, C. I. 0., as the exclusive
representative of all employees of respondents, exclusive of office
employees and supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes of status of
employees, or. effectively recommend such action, in respect to rates
of pay, wages, hours of employment, and other conditions of em-
ployment ;
(f) Post immediately at its plant at New York City copies of
the notice attached to the Intermediate Report herein, markgd
"Appendix A." 3 Copies of said notice, to be furnished by the
Regional Director of the Second Region, after being duly signed
by the respondents, shall be posted by the respondents immediately
upon receipt thereof, and maintained by them for sixty (60) con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the respondents to insure that said notices
are not altered, defaced, or covered by any other material;
(g) Notify the Regional Director of the Second Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the respondents have taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. David H. Werther, for the Board.
Mr. N. R. Kaplan , of Tenzer , Greenblatt , Fallon and Kaplan, and Mr. Hyrian
Garfunkel, for the respondent.
Mr. Frank Scida, for Local 50.
Mr. Arnold Cohen, of Buitenkant & Cohen, for Local 452.
3 Said notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendation of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order."
SURPRISE CANDY COMPANY .S
STATEMENT OF THE CASE
Upon a third amended charge in Case No. 2-C-5619, duly filed by United
Candy and Confectionery Workers Union, Local 50, C. I. 0., herein called Local
50, and a first amended charge in Case No. 2-C-5683, duly filed by Sara S.
McMahon, and pursuant to an order dated March 28, 1945, of the National
Labor Relations Board, herein called the Board, consolidating said cases, the
Board, by the Regional Director for the Second Region (New York, New York),
issued its complaint, dated April 14, 1945, against Jacob Garfunkel and Hyman
Garfunkel, hereinafter jointly referred to as respondents, co-partners, doing
business under the trade name and style of Surprise Candy Company, New
York, New York, alleging that the respondents had engaged in unfair labor
practices within the meaning of Section 8 (1), (3), and (5) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act Copies of the complaint, together with notice of hearing thereon, were
duly served upon the respondents, Candy and Confectionery Workers Union,
Local 452, A. F. L., hereinafter referred to as Local 452, Local 50, and others
having an interest in the proceedings.
With respect to unfair labor practices, the complaint alleged in substance
that the respondents: (1) from on or about December 1, 1943, to date, have
vilified, disparaged, and expressed disapproval of the C I. 0., have urged,
persuaded, and warned their employees to refrain from assisting, becoming
members of, or remaining members of the C. I. 0, have assisted, contributed
to the support of, and interfered with, the administration of Local 452; (2) dis-
charged Pauline Grossman, Sara S. McMahon, Christina McMahon, and Paul
Vertuoso, because of their union activities, and (3) did fail and refuse to
bargain in good faith with Local 50 as the designated collective bargaining
representative of its employees in an appropriate unit.
No formal answer was filed. However, certain allegations in the complaint
were orally admitted by the parties.
Pursuant to notice, a hearing was held at New York, New York, from
May 1, 1945, through May 14, 1945, before the undersigned, Sidney L. Feller,
the Trial Examiner duly designated by the Chief Trial Examiner. The Board
and Local 452 were represented by counsel, Local 50, by a representative At
the commencement of the hearing, respondents were represented by counsel.
However, on the fifth day of the hearing, May 7, 1945, N. R. Kaplan, of counsel
to respondents, announced that his firm had been requested to withdraw.
Hyman Garfunkel, one of the copartners, confirmed this statement and declared
that there would be no substitution of counsel for respondents. He was advised
that a representative of respondents could appear, cross-examine witnesses,
and offer the testimony of witnesses. Hyman Garfunkel remained for that
session of the hearing, testified, and participated in the examination of a
witness to the extent of entering objections to certain questions. Thereafter
no representative of respondents appeared and no testimony was introduced
on its behalf although the undersigned gave notice to respondents at the con-
clusion of the Board's case that there was an opportunity for them to do so.
Local 50 and Local 452 rested at the close of the Board's case. Counsel for
the Board presented an oral argument. Counsel for Local 452 filed a brief
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACTS
I. THE BUSINESS OF THE RESPONDENTS
Respondents are copartners having their principal office and place of business
at New York, New York, where, under the trade name and style of Surprise
Candy Company, they are engaged in the manufacture, sale, and distribution
of candies and related products. During the past year, respondents, In the
course and conduct of their business operations, purchased materials valued
in excess of $250,000, of which approximately 5 percent was shipped to their
plant from States of the United States other than the State of New York.
During the same period, respondents manufactured products valued In excess
of $250,000, of which approximately 75 percent was transported from said
plant to States of the United States other than the State of New York.
The respondents admit, for the purpose of this proceeding, that they are
engaged In commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Candy and Confectionery Workers Union, Local 50, Wholesale and
Warehouse Workers Union, Local 65, both affiliated with United Retail, Whole-
sale and Department Store Employees of America, C. I. 0., and Candy and
Confectionery Workers Union, Local 452, A. F. of L., are labor organizations
admitting to membership employees of the respondents.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. The 1943 organizational campaign
Self-organization was begun by employees of respondents in December 1943.
It was a movement motivated by their desire for job security and seniority
rights.' A group of employees met with employee Sara S. McMahon, discussed
the discharge of a co-worker, and decided to see a union representative. A
short time thereafter, Jacob Garfunkel summoned Sara McMahon to his office
and asked her what all the union talk was about. Mrs. McMahon stated that
the employees were afraid that they would lose their jobs. Jacob Garfunkel
reassured her that her job was not In jeopardy, declared that there was no
sense In allowing a union in the plant, and told her that she should "stop
talking about unions because the people are not Interested." Nevertheless,
the employees decided to proceed to organize.
Employee Pauline Grossman was a member of Wholesale and Warehouse
Workers Union, Local 65, C. I. 0., hereinafter referred to as Local 65. She
suggested that the employees confer with Max Mattis, division director of
Local 65. This suggestion was adopted and a group of the employees met
with Mattis on December 9. They discussed unionization of the plant, signed
1 The findings in this section are based upon the testimony of Sara S. McMahon, Max
Mattis, Pauline Grossman , and Irene Chievak. No attempt was made to contradict their
recital of events in essential details and their testimony is credited.
SURPRISE CANDY COMPANY 7
membership cards, received blank membership cards for distribution, and
arranged to have their next meeting at Sara McMahon 's house.
After the first meeting, Sara McMahon prepared a document headed :
WE, THE UNDERSIGNED, WORKING FOR THE SURPRISE CANDY
CO. OF 48 Mangan Street, New York City, DO HEREBY AGREE TO
JOIN THE WHOLESALE AND WAREHOUSE WORKERS UNION OF
LOCAL 65 OF THE CIO.
She circulated this document among the employees of respondents and obtained
23 signatures.
The day after the document was first circulated at the plant, Jacob Garfunkel
prepared and posted a notice as follows :
"1. Starting Wednesday Dec. 15, all girls must wrap the candy with a
3 corner tuck in, as will be explained. All candy not so wrapped will
be required to be re-wrapped.
2. All girls must put their initials on each box they wrap.
3. All girls found talking at their work bench will be dismissed for that
day. ,,
At the time this notice was posted, the candy wrappers, who were paid on
a piece-work basis, used a method of wrapping by which they earned substan-
tially more than they would under the method proposed. Also, there had
never been a rule against talking while at work. Jacob Garfunkel testified
that the new method of wrapping was instituted because of complaints from
customers that respondents' candy bars were poorly wrapped. However, the
undersigned finds that the requirement was announced at the midst of the
organizational campaign to indicate respondents' displeasure and that the
no-talking rule was promulgated to further hinder organizational efforts. These
new rules were never enforced.
On the night of December 14, a group of employees met with Mattis at the
home of Sara McMahon. The afore-mentioned notice was discussed and a
committee was appointed to meet with respondents the next day.
On December 15, before the starting time for work, the committee met
Mattis and another union official outside the plant. They then proceeded
inside. As they entered the plant they saw Jacob and Hyman Garfunkel
and an employee, Elizabeth Geary, standing near a table. Jacob Garfunkel
called out, "All those who do not want a union, sign this piece of paper,"
and he pointed to a paper in Mrs. Geary's possession. Mrs. Geary added,
"We don't want a union. Sign against the Union and put your name on
this paper."'
Mattis introduced himself and requested a conference. A meeting was then
held at respondents' office attended by Mattis and the committee. Mattis was
the spokesman for the group. He asked Jacob Garfunkel for bargaining
rights for his union. Garfunkel replied that the employees did not need a
union and that he would not negotiate. There also was discussion of the new
2 This paper , received in evidence , is a sheet of respondent 's stationery on which is
written :
12/15/43
The undersigned do not want a union
It contains 12 signatures.
Jacob Garfunkel, when shown the paper denied that he had ever seen it. Later
he admitted that he had formulated and written the heading at the request of an
employee , Emma Byrnes . He denied having any knowledge as to the purpose to
which it would be put. His testimony on this point is not credited.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wrapping requirements. No decisions were made at this meeting other than
to discontinue the 3-cornered tuck.
An hour or two after the meeting, Mrs. Byrnes told Sara McMahon that
Jacob Garfunkel wished to see her. Garfunkel told Mrs. McMahon that he
did not want a union in the plant and that if the employees formed their own
union he would grant them their demands. She replied that she would abide
by the decision of the rest of the employees.
Thereupon, Garfunkel stopped work in the plant, summoned all the employees
together and told them in substance what he had just told Mrs. McMahon,
adding that he would close the plant rather than recognize Local 65. He
further stated that a committee should be appointed consisting of those in
sympathy with the Union and those opposed. He appointed a non-union group
of three. The union followers elected three representatives, Sara McMahon,
her sister-in-law, Christina McMahon, and Gloria Spieler. Garfunkel then
instructed the committee to draft demands. Mattis was advised of this devel-
opment and offered no objection to it.
That afternoon the shop committee met with Jacob Garfunkel. Sara McMahon
presented a list of demands and acted as spokesman. The non-union group
did not actively participate in the discussion. Garfunkel agreed to some of
the demands and promised to have a written agreement prepared. This was
never done In fact, the agreement reached was never carried out. The com-
mittee failed to act after one attempt to assert itself after the discharge of
Pauline Grossman on December 30. Union activity also ceased. The 1943
campaign ended in failure
2. The 1944 organizational campaign ; C. I. O. activity
The next union activity at the plant occurred in August, 1944. The plant
was closed for vacations from July 23 to August 4. Salaried employees were
paid for this period, but piece-rate employees received no compensation. This
was the spark which touched off a new movement for self-organization.
On August 10 or 11, a group of employees met with employee Christina
McMahon at her home' They decided to proceed with unionization efforts.
Christina McMahon had some blank membership cards of Local 65 in her
possession and the employees signed them. She then endeavored without
success to communicate with Max Mattis, the representative of Local 65.
Meanwhile, Frank Scida had been informed of the activities at the plant
by one of the members of his union who worked there. Scida thereupon went
to see Christina McMahon and informed her that his union wished to organize
the plant. Christina McMahon gave him the signed Local 65 cards she had
obtained and received blank membership cards for Scida's union. She proceeded
to distribute and obtain signatures to those cards.
Christina McMahon and Paul Vertuoso were discharged in the early after-
noon of August 16. Christina McMahon told Scida what had happened and
the latter saw Jacoli Garfunkel that afternoon after he had first discussed
their cases with the two dischargees.
When Scida met Garfunkel at the plant, he introduced himself as a repre-
sentative of Local 50 and stated that he wished to discuss the two discharges.
Garfunkel replied that his employees did not need a union. After further
8 The findings in this section are based primarily upon the testimony of Christina
McMahon and Frank Scida, president of Local 50. Their testimony is credited.
SURPRISE CANDY COMPANY 9
discussion, Garfunkel agreed to reinstate Paul Vertuoso, but refused to alter
his decision as to Christina McMahon. At the close of the conference it was
agreed that there would be another meeting on the next day, August 17.
Scida then held a meeting of respondents' employees after working hours
that day. He obtained additional signatures to membership cards and made
a report of his conference with Garfunkel. He learned that during that
afternoon three other employees, Anna Mayosky, Joan Feinberg, and Irene
Chicvak, had been discharged. He also was informed that the plant would
be closed until August 21. Thereupon, he telephoned Garfunkel and made
arrangements for a conference on August 21.
On August 21, before commencing work, the employees met Scida in front
of the plant. Scida sent the dischargees up to the plant to go to work. They
returned in a short while and reported that, except for Vertuoso, Jacob
Garfunkel had refused to reinstate them. Scida then escorted the employees
to a hall where he conducted a meeting. He told the assembled workers that
he would discuss the discharges with Garfunkel and report back to them. He
requested them not to return to work until after his conference.
Scida conferred with Jacob Garfunkel shortly thereafter and it was agreed
that all the dischargees would be reinstated except Anna Mayosky and Chris-
tina McMahon. Arrangements were also made for another meeting that after-
noon. The employees then returned to work.
Scida returned to the plant that afternoon accompanied by another repre-
sentative of Local 50 and Christina McMahon. They met with Jacob and
Hyman Garfunkel.4 Then Scida made a demand for bargaining rights on behalf
of the Union. This is discussed hereinafter. It was also agreed that Anna
Mayosky should be reinstated.
That evening, Scida again met with the employees They reported that
efforts were being made to force them to join the A F. of L union, Local 452.
Scida instructed them not to sign any cards for that union The next morning
he telephoned Jacob Garfunkel who told him that Local 452 had "come into
the picture" and that he could not negotiate a contract with him. The next
day, August 23, Scida filed charges with the Board alleging violations of
Section 8 (1) and (3). He also filed a petition for certification of repre-
sentatives.
3 The 1944 organizational campaign , A. F. of L activity
Respondents , at the time of the hearing , were operating under the terms
of a closed-shop contract with check -off provisions signed with Local 452.
Local 452 offered no testimony concerning the execution of this contract or on
other relevant facts. The sole testimony on these matters was furnished by
Jacob Garfunkel who represented respondents in the alleged negotiations.
Garfunkel testified in substance as follows : In the summer of 1943, Arthur
Goddard , a representative of Local 452, told him he intended to unionize the
plant. However, he did not take any positive action. Sometime in July
1944 , Goddard again approached him, declared that Local 452 represented a
4 Scida testified that throughout his negotiations with Jacob Garfunkel the latter ex-
pressed sharp antipathy to Local 50, declared that it was a communist union, and that
he would close the plant rather than sign a contract with it Counsel for Local 452
sought to attack Scida's testimony on the ground that these alleged statements were not
recited in the original charge filed by Scida In view of the corroborative testimony of
other witnesses and the absence of any denial by Garfunkel, this testimony is credited.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority of the employees in the plant, and asked him whether he was willing
to sign a contract .5 Garfunkel said that he was willing to do so. Goddard
thereafter produced a contract and left it with him. Garfunkel signed it and
returned it to the Union.
Certain circumstances require more detailed exposition. The contract and
also its date of execution are of great importance. Two copies of the contract
were produced at the hearing. The first copy was furnished by counsel for
respondents. The second copy was sent to the Board prior to the hearing by
counsel for Local 452. In both copies the date of execution had been left
blank. This omission was never satisfactorily cleared up. Garfunkel testified
that he first received the contract "in the early part of August or the latter
part of July," he "wouldn't know" if he received the contract after 8/24/44,
he was "quite sure" that he saw the contract before 8/24/44, he could "possibly"
have seen it in July, 1944, and that he saw it sometime between July 15 and
August 24. He also could not fix the date of execution of the contract other
than to say that he signed it a few days after he received it.
Eleanore Smit , a field examiner for the Board, testified that in a conference
she had with the parties on September 1, counsel for Local 452 informed her
that the contract had been signed about 2 weeks prior thereto. She testified
that Jacob Garfunkel informed her that day that he had signed the contract
about 5 days before, and that he did not have a copy available because he had
sent the contract to Local 452 for signature of its officials and had not yet
received his copy from it. Miss Smit's testimony is credited.
Other factors bearing on the question of the date of execution of the contract
are that it bears the typewritten date "8/24/44" in the upper left corner and
that, although the effective date of the agreement was handwritten as August 4,°
deductions from the salaries of the employees pursuant to check-off provisions
were first made on September 25.
The undersigned was not impressed by the testimony of Jacob Garfunkel
His testimony was vague, contradictory, and improbable. His testimony was
to the effect that the contract was signed sometime before August 24, shortly
after August 4, and that Goddard had requested bargaining rights in July.
Despite these alleged negotiations with Local 452, Garfunkel admitted that
he met with representatives of Local 50. He claimed that only discharges
were discussed. However, at no time did he mention the existence of a contract
with Local 452 or any negotiations with it.
The undersigned concludes and finds that the contract was signed after
demand for bargaining rights had been made by Frank Scida on August 21,
on behalf of Local 50, and that the contract was signed on or shortly after
August 24, 1944.
This finding is further supported by the evidence of activity at the plant
on behalf of Local 452. Employees of respondents almost unanimously agreed
that no activity on behalf of Local 452 and the A. F. of L. occurred prior
to August 21.7 Testimony that Arthur Goddard, the representative of Local 452,
did not appear at the plant until after August 21 was not refuted.
5 Garfunkel claimed that Goddard showed him signed membership cards at that time
These cards were never offered in evidence.
9 The two copies of the contract differ in respect to the termination clause.
7 May Goldfarb was the only employee who testified that the A. F of L. had been
discussed by the workers before August 21. Her testimony was contradictory and at
variance with statements she made in an affidavit for a Board Investigator. Her testi-
mony is not credited,
SURPRISE CANDY COMPANY 11
On August 21, after Scida had discussed a contract with Jacob Garfunkel,
Mrs. Jacob Garfunkel, in her husband's presence, told a group of employees
that the C. I. O. (Local 50) was a communist union and that respondents
could afford to close the plant for 3 weeks if they persisted in membership
in Local 50. She urged them to join Local 452.1 That afternoon Emma Byrnes,
an employee, started to organize for Local 452 by soliciting employees in the
plant. Employee Joseph Pollack testified that he signed a membership card
in Local 452 at the request of Hyman Garfunkel. Employee Frank Collora
testified that he also signed such a card at the request of Jacob Garfunkel
who, when Collora protested, said, "You know, Frank, you know which side
your bread is buttered." The uncontroverted testimony of these two witnesses
is credited. A succession of other witnesses testified that they subsequently
signed membership cards for Local 452 only because they had to do so pursuant
to the closed-shop provision of the contract.
4. Concluding findings
The history of organizational activity at the plant indicates continued and
determined opposition by respondents to the unionization of their employees.
In 1943, respondents intervened directly and by a judicious combination of
threats and promises broke up an attempt by employees to organize. In 1944,
respondents were faced by a similar situation. By the time they became aware
of the movement it apparently was too strong to be met by a frontal attack.
The overwhelming weight of the evidence indicates that respondents made
use of the device of selecting a union with which they preferred to deal and
signed a contract with it as the lesser of two evils. They also brought pressure
on employees to join and assisted Local 452 in obtaining members. Recalci-
trants were confronted by a fait accompli and were given the alternatives of
joining Local 452 or being discharged.'
The undersigned finds that respondents have urged, persuaded and warned
their employees to assist, become and remain members of Local 452, and have
assisted, contributed to the support of and interfered with the administration
of Local 452, and thereby have interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
The undersigned further finds that respondents, by making anti-union state-
ments set forth above, by urging and persuading its employees to withdraw
from Local 65, and later, Local 50; by their campaign of vilification and dis-
paragement of those labor organizations ; by their requirement that employees,
as a condition of employment, become and remain members of Local 452; by
each of the foregoing, and by other acts set forth above, have interfered with,
restrained, and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
A This finding is based upon the testimony of Mary Cibulsky and Jean Feinberg. Mrs.
Garfunkel did not hold any position with respondents. It is obvious that she was
acting for the benefit of respondents and that Garfunkel ratified her action.
11 The Board made out a strong prima facse case. The answer of respondents and
Local 452 was silence and testimony by Jacob Garfunkel which was evasive, confused,
and unworthy of belief.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discriminatory discharges
1. Pauline Grossman
Pauline Grossman started to work for respondents in October, 1943. She was
employed as a wrapper until her discharge on December 30, 1943.
Miss Grossman took a very active part in the attempt of the employees to
form a union in December 1943. Sara McMahon asked her for assistance when
other employees indicated their willingness to organize. Miss Grossman, who
had been a member of Local 65 since 1941, made arrangements for the group
to see Max Mattis, a representative of that union. She attended the meetings
of the group, helped Sara McMahon obtain signatures for Local 65, was selected
to serve on the committee which met with respondents, and actually attended
the meeting which was held on December 15, as heretofore related.
Pauline Grossman sat at the same table with Sara McMahon, the leader of
the organizing movement, and Gloria Spieler, a member of the group which
presented demands to Jacob Garfunkel. On the morning of her discharge, Miss
Grossman was talking to Sara McMahon.10 Jacob Garfunkel went over to the
table and told her that he did not want any talking of politics in the plant.
He ordered her to sit alone at another table. She protested, but Garfunkel
insisted, saying, "It is my shop and I will put you where I see fit." Miss'
Grossman started to move to the designated table, but before she could do so
Garfunkel handed her a check and discharged her.
The committee set up by Garfunkel in December 1943, asked him why he had
discharged Pauline Grossman. Garfunkel replied that she had been insubor-
dinate. He also declared that she was a "paid delegate." Then he told
Christina McMahon, a member of the committee, "after all, Tina, what are
you sticking your nose out for? You are not getting paid for this."
The key to Garfunkel's motive in discharging Pauline Grossman can be
found in his using the term "paid delegate" in referring to her. Miss Grossman
had openly espoused the cause of Local 65. Garfunkel knew of her activities
and it can be inferred from his remark that he knew that she had been the
person who recommended affiliation with Local 65. He had taken quick and
drastic action to break up the unionization of his workers. He undoubtedly
blamed Pauline Grossman for his labor troubles. On the day of her discharge,
when he saw her talking with Sara McMahon, another leader of the employees,
he thought that they were again plotting against him and became enraged.
He' told Pauline Grossman to stop talking "politics." The undersigned con-
cludes from the surrounding circumstances that he was referring to labor
matters He proceeded to separate the pair, but then changed his mind and
decided to rid himself of her completely. The undersigned finds that Pauline
Grossman was discharged because of her membership in and activities on
behalf of Local 65.
2. Sara S. McMahon
Sara S. McMahon took the leading part in the attempt to organize the
employees of respondents in December 1943.11 She participated in the pre-
10 The findings in this section are based chiefly on the testimony of Christina McMahon,
Sara McMahon, and Pauline Grossman. Jacob Garfunkel did not testify concerning
the circumstances under which this discharge was made.
11 The findings in this section are based primarily upon The testimony of Sara Mc-
Mahon, which was uncontradicted in its essential details.
SURPRISE CANDY COMPANY 13
liminary meetings held with the representative of Local 65, one of those
meetings having been held in her home. She was appointed to the committee
selected to negotiate with respondents. Later she was appointed by the union
sympathizers in the plant to serve on the shop committee organized by Jacob
Garfunkel as an alternative to a union affiliated with Local 65. She helped
prepare demands of that committee for improved conditions and acted as
spokesman in presenting them.
Jacob Garfunkel knew of her activities from the start. When the question
of self-organization was first discussed by some of the employees, Garfunkel
learned of it in some undisclosed way and tried to dissuade Mrs McMahon
from continuing. After Max Mattis had spoken with him, he summoned Mrs.
McMahon and sounded her out as to the feasibility of having some unaffiliated
organization of the employees instead of an affiliated union. Undoubtedly,
he considered her the leader of the employees.
Sara McMahon's employment was terminated by Jacob Garfunkel on March
20, 1944 On that day Garfunkel told her that he had to lay off a few people
and that he thought it "best" to lay her off since her husband could support her.
Mrs. McMahon had been employed by respondent since March 1942. Shortly
thereafter she became a wrapper and continued in that position until her lay-off.
She testified, without contradiction, that on March 20 approximately twenty
wrappers were employed of whom only three were senior to her Of those
with less seniority, practically all had working husbands. When Mrs McMahon
called Garfunkel's attention to this fact, he refused to change his decision.
She then protested to Hyman Garfunkel, who later reported to her that Jacob
did not want her. She was never recalled to work, although new wrappers
were hired shortly thereafter.
The undersigned concludes from the testimony in this case that Sara
McMahon was not laid off for the reason given her, but was discharged because
of her prior union activities and the potential danger of her commencing such
activities in the future.
3. Christina McMahon
Christina McMahon, Sara McMahon's sister-in-law, was discharged on August
16, 1944. She also had taken a leading part in the union campaign of December
1943. She had served on the union committee and also the shop committee.
She had taken a part in negotiations with Jacob Garfunkel. Later, when
she and others on the shop committee had spoken to Garfunkel concerning
the discharge of Pauline Grossman he had said to her, "after all, Tina, what
are you sticking your nose out for? You are not getting paid for this."
Christina McMahon took the dominant role in the next effort to organize
the plant which occurred in August 1944. She arranged meetings at her home,
secured signed membership cards from the employees, and planned the cam-
paign with Frank Scida.'z The employees had their first organizational meeting
at Christina McMahon's home on August 10 or 11 She first met Scida on
August 10 or 11. On the evening of the 14th she received from him blank
membership cards for Local 50. She proceeded to obtain signatures to those
cards?'
1a There is no dispute as to the part played by Christina McMahon in this campaign.
It was attested to by several witnesses.
'3 Mrs. McMahon was uncertain as to whether she obtained signatures to some cards
at noon on the 16th or whether they were obtained later. No finding is necessary on
that question. Her leadership in union activities at the plant is unquestioned.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the early afternoon of August 16, Paul Vertuoso came up to Christina
McMahon and told her that he had Just been discharged. Mrs. McMahon told
him not to speak to her at the plant, but to see her after work. This conver-
sation took place in the presence of Jacob Garfunkel.
Shortly thereafter, the candy making machine became out of order and
stopped. Christina McMahon left her seat and went over to a window. When
the machine started up again she did not immediately return to her seat.
Jacob Garfunkel called to her and said, "God damn you, get the hell in your
seat where you belong." Mrs. McMahon protested that only scrap was coming
out of the machine at that time and that there was no work for her. Garfunkel
replied, "I don't give a darn what the hell work there is for you to do, you sit
there and sit there for your eight hours." She protested against his attitude.
Garfunkel rejoined that there was no union in the shop as yet and he would
do as he saw fit, that until there was a union he was still the boss She
returned to her seat, but shortly thereafter Garfunkel told her to go home
for the rest of the day. As she was clocking out, he told her that she was
discharged?'
Jacob Garfunkel did not furnish any details concerning this discharge. His
motive in making it must he established from the surrounding circumstances
Christina McMahon had been employed by respondent for 3 years. She testified
without contradiction that she was the fastest wrapper and in the past had
been assigned to instruct new employees?' It would seem unreasonable to
suppose that Jacob Garfunkel was primarily motivated in his actions by the
failure of Mrs. McMahon to promptly take her seat, when, as a piece-rate
worker, she was only paid for work produced.16 Garfunkel's feelings were
evidenced by his remark to her that there was no union in the plant and that
he was boss until there was one. Garfunkel had clearly evidenced a strong
anti-union bias in the past. The plant employed a total of 26 employees. It is
reasonable to assume that union activities in this small group would soon
become known to all in the plant, including the copartners. Garfunkel in the
past had shown that he had reliable sources of information on such activities.
The undersigned concludes that Jacob Garfunkel was aware of Christina
McMahon's union activities. This knowledge undoubtedly aroused his anger
and caused him to take the first opportunity to remove her from the plant.
A few days after her discharge, employee Jean Feinberg heard him state he
was glad to get rid of Mrs. McMahon and the organizers, that they were com-
munists and trouble-makers 17
The undersigned finds that Christina McMahon was discharged because of
her membership in and activities on behalf of Local 50 thereby discouraging
membership therein.
14 The findings as to this incident are based on the testimony of Christina McMahon
and May Goldfarb.
>s She also testified that she had been laid off once for a week for refusal to work
overtime at straight pay. She denied Hyman Garfunkel's testimony that she had been
insubordinate. In any event, she had been rehired by Jacob Garfunkel.
Id She testified that it was customary for all wrappers to leave their seats when the
candy-making machine broke down.
17 This testimony is credited.
SURPRISE CANDY COMPANY
C. The alleged discriminatory discharge
Is
Paul Vertuoso was finally discharged on August 24, 194418 He did not appear
at the hearing. Counsel for the Board stated that Vertuoso was in Detroit,
but could not be reached.
Jacob Garfunkel testified that he had to release Vertuoso because the latter
told him that he would not work with colored people 1B He also testified that
Vertuoso had not kept his working place clean and was not "very receptive"
to the idea of cleaning it. However, Garfunkel declared that it was Vertuoso's
statement about colored workers which prompted his discharge.
The Board produced witnesses who had worked with Vertuoso at the time
of his discharge who testified concerning it. Jean Feinberg testified that
shortly before his discharge, Vertuoso had been told to rearrange ashcans,
which was not his job. Also, she stated, Vertuoso after having swept the floor
twice, was instructed by Garfunkel to sweep a third time and that Garfunkel
had said he would make it tough for him. Miss Feinberg maintained that
Vertuoso's refusal to sweep a third time led to his discharge. Frank Collora
gave a different version. He testified that, in his opinion, Vertuoso was dis-
charged for fooling with women employees. He also testified that it was
customary to sweep several times a day.
Paul Vertuoso was in sympathy with the organizational efforts on behalf
of Local 50. Christina McMahon testified that he was one of the employees
woo asked her to organize a union. Also, he signed a membership card Yor
Local 50 on August 16.
Veituoso fist was dischaiged in the early afternoon of that day. Frank
Scida testified that Vertuoso told him that prior to that day Mrs. Jacob Gar-
funkel had told him that it he did not stop activities on behalf of Local 50
he would be uisciiarged and that he, Vertuoso, had refused to stop. Scida
fuither testified that he saw Garfunkel on the afternoon of August 16 to
protest Veituoso s discharge. He repeated Vertuoso's statement concerning his
conversation with Mrs. Garfunkel and Garfunkel made some reply, but did
not repudiate her statement of respondents' alleged policy'
There are factors in ties case which tend to support the allegation that
Veituoso was discriminatorily discharged. Respondents obviously knew of
Vertuoso's affiliation with Local 50, if for no other reason than the protest
of that union against his discharge on August 16. Garfunkel's strong antipathy
to Local 50 was clearly show u. It seems stiange that Vertuoso should have
raised the question of working with colored help after he had been employed,
as Garfunkel testified, for approximately 6 months. Yet the testimony intro-
duced by the Board concerning the discharge on August 24 is sketchy, incom-
plete, and, in certain respects, contradictory. Collora's testimony, which is
credited, indicates that Vertuoso was not a model employee and that a good
deal of sweeping was required at their place of work. Upon the state of the
record, the undersigned finds that there is insufficient evidence to establish
that Paul Vertuoso was discriminatorily discharged.
is He was also discharged on August 16.
19 There were two colored employees working in the section where Vertuoso worked.
20 Garfunkel agreed to reinstate Vertuoso during that conference. The testimony sheds
little light on what actually was said and done at the time of that discharge.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The refusal to bargain collectively
1. The appropriate unit
The complaint alleged that all employees of respondents, exclusive of office
and supervisory employees, constitute a unit appropriate for the purposes of
collective bargaining. This allegation was orally admitted by respondents,
Local 452, and Local 50.
The undersigned finds that all employees of respondents, exclusive of office
and supervisory employees, with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes of status of employees, or effectively recom-
mend such action, at all times material herein constituted and they now
constitute a unit appropriate for the purposes of collective bargaining with
respect to rates of pay, wages, hours, or other conditions of employment, and
that said unit insures to employees of the respondents the full benefit of their
right to self-organization and to collective bargaining and otherwise effectuates
the policies of the Act.
2. Representation by Local 50 of a majority in the appropriate unit
On August 16, 1944, there were 24 employees in the appropriate unit. On
August 21, 22, and 23, there were 27 employees in the appropriate unit?'
In support of its contention that Local 50 represented a majority of the
employees in the appropriate unit the Board offered the following documentary
proof signed by employees on the respondents' pay roll :
A. A group of thirteen membership cards in Local 50, dated August 16,
1944. (Board's Exhibit 12)
B. A group of five membership cards in Local 50, also dated August 16,
1944. (Board's Exhibit 13)
C. A membership
Exhibit 14)
card in Local 50, dated August 17, 1944. ( Board's
D. A membership
Exhibit 15)
card in Local 50, dated August 21, 1944." (Board's
E. Two membership cards in Local 65, one dated August 10, 1944, and
the other August 11, 1944. (Board's Exhibit 11)
These latter two cards were signed respectively by Joseph Pollock and
Joseph Ferraro. These men also signed a document in the course of the 1943
campaign on behalf of Local 65 expressing willingness to join that union.
They were among the group who signed cards in Local 65 at the start of the
1944 campaign. However, they did not sign with Local 50 as did others in
that group. No reason for their failure to do so has been advanced. The
Board sought to add their cards to the total for Local 50. Counsel for Local
452 strenuously objected to this transfer of affiliation without the consent of
the employees involved. In any case, Local 50 had a clear majority without
the use of these cards, and the undersigned does not consider them.
a This finding is based on the testimony of Helen Ganz, respondents' bookkeeper. Em-
ployees who were absent on those dates because of illness and who returned to work
thereafter are included in the computation.
zz Board's exhibits 12, 13, 14, and 15 were admitted in evidence without objection.
SURPRISE CANDY COMPANY 17
No card was offered for Alphonse Plano. However, Frank Scida testified
that Plano was a fully paid-up member of Local 50 at all times relevant herein
and that Plano was sent to work at respondents' plant to assist that union
in its campaign there.23 Scida's testimony is credited, and Plano's name is
added to those in favor of Local 50. It is clear, and the undersigned finds, that
on August 21, 1944, Local 50 had been designated by 20 employees of 27 in
the appropriate unit as their collective bargaining representative.
The undersigned finds that on and at all times after August 16, 1944, Local
50 was the duly designated representative of a majority in the aforesaid
appropriate unit, and that by virtue of Section 9 (a) of the Act, Local 50, was
at all times material herein, and is, the exclusive representative of all the
employees in such unit for the purpose of collective bargaining in respect to
rates of pay, wages, hours, or other conditions of employment.
3. The refusal to bargain
Scida testified that in the afternoon of August 16, 1944, he made his first
demand for bargaining rights on behalf of Local 50. He also testified that
at that time his union did not represent a majority of the workers in the unit.
However, Scida further testified, and the undersigned finds, that during his
conference with Jacob Garfunkel in the afternoon of August 21, he, Scida,
demanded that a contract be signed with Local 50 as collective bargaining
representative of the employees.'* He presented a draft contract which was
discussed paragraph by paragraph. Garfunkel objected to certain provisions
and made counter-proposals on others.
Garfunkel proceeded with the negotiation of a contract in apparent good
faith. Nevertheless, in view of his conduct immediately afterwards in aiding
and assisting Local 452, the undersigned finds that Jacob Garfunkel did not
bargain in good faith with Scida and never honestly attempted to reach an
agreement with him. His discussion with Scida on August 21, was merely an
attempt to delay matters and obtain more time to make arrangements with
Local 452. Likewise, his statement to Scida on August 22 that he could not
proceed with negotiations because Local 452 was in the picture was a sham
and pretense. Local 452 was in the picture, but with the aid and assistance
of the respondents. As a climax, Garfunkel signed a closed-shop contract with
a check-off provision with a union which, on the basis of the evidence herein,
did not have any substantial membership among the employees. The signing
of that contract itself constituted a refusal to bargain 25
23 Plano died prior to the hearing.
u Scida testified that he exhibited signed membership cards to respondents, but did
not allow detailed inspection of them for fear of reprisals . The undersigned finds that
respondents did not seriously question Local 50's representation of a majority of the
workers.
25 Counsel for Local 452 maintained that the fact that Scida filed a representation
petition rather than a charge of a refusal to bargain under Section 8 (5) indicates
that there had been no refusal to bargain and that Local 50 did not represent a ma-
jority of the employees of the plant Scida, on August 23, had the option of proceeding
in accordance with the provisions of Section 8 (5) or by petition. He did not know
of the existence of any contract between the respondents and Local 452. When he did
learn of the contract, he filed charges under Section 8 (5) on September 5.
The undersigned has found that Local 50 was in fact the representative of a majority
at that time and further finds that membership cards for Local 452 were first signed
after Scida's demand on August 21. Since those cards were signed with the aid and
686572-46-3
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds that on or about August 21, 1944, and at all times
thereafter , the respondents refused to bargain collectively with the Union as
the exclusive representative of its employees in the aforesaid appropriate unit,
thereby interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above, occurring
in connection with the operations of the respondents described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and such of them as have been found
to be unfair labor practices 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 respondents have engaged in unfair labor
practices, it will be recommended that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act
and to restore as nearly as possible the status quo existing prior to the com-
mission of the unfair labor practices.
The undersigned has found that the respondents assisted Local 452 by their
recognition of Local 452 and execution of a contract with it in August 1944,
which contract is still in effect. The undersigned accordingly will recommend
that the respondents withdraw their recognition of Local 452 as bargaining
representative of their employees and that they cease and desist from giving
effect to said agreement, or any extension, renewal, revision, modification, or
supplement thereof. Nothing hefein, however, shall be taken to require the
respondents to vary those wages, hours, seniority, and other substantive fea-
tures of their relations with the employees themselves which the respondents
may have established in performance of the said contract, or of any revision,
extension, renewal, modification, or supplement thereof.
It has been found that the respondents have discriminated in regard to the
hire and tenure of employment of Pauline Grossman, Sara S . McMahon, and
Christina McMahon. It will therefore be recommended that the respondents
offer them immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other rights and
privileges. It will be further recommended that the respondents make them
whole for any loss of pay they may have suffered by reason of the respondents'
discrimination against them by payment to each of them of a sum of money
equal to the amount each would have earned as wages from the date of the
discrimination against them to the date of the respondents ' offer of reinstate-
ment, less the net earnings" of each during said period.
s° By "net earnings" is meant earnings less expenses , such as for transportation,
room, and board , incurred by an employee in connection with obtaining work and
working elsewhere than for the respondents , which would not have been incurred but
for his unlawful discharge and the consequent necessity of his seeking employment
elsewhere . See Matter of Crossett Lumber Company, 8 N. L. R . B. 440 . Monies re-
ceived for work performed upon Federal, State , county, municipal , or other work-relief
projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
SURPRISE CANDY COMPANY 19
Having found that the respondents have refused to bargain collectively with
Local 50, the undersigned will recommend that the respondents, upon request.
bargain collectively with Local 50 as the exclusive representative of the
respondents' employees in respect to rates of pay, wages, hours of employment,
and other conditions of employment. It will be the purpose of the recommenda-
tions to restore as nearly as possible the status quo by giving effect to Local
50's majority on the dates of the refusals to bargain collectively. A failure to
recommend that the respondents bargain collectively, upon request, with Local
50 "would be to hold that the obligation of one provision of the Act may be
evaded by the successful violation of another, that the freely expressed wishes
of the majority of the employees may be flouted if the employer brings to bear
sufficient interference, restraint, and coercion to undermine the representative's
majority support.""
Since the alleged contract with Local 452 provided for a closed shop with
the check-off of dues, it will also be recommended that respondents be ordered
to reimburse their employees for membership fees and dues deducted from
their salaries by respondents and paid to Local 452.
Upon the basis of the foregoing findings of fact and the entire record in
the case, the undersigned makes the following
CONCLUSIONS OF LAW
1. United Candy and Confectionery Workers Union, Local 50, Wholesale and
Warehouse Workers Union, Local 65, both affiliated with United Retail, Whole-
sale and Department Store Employees of America, affiliated with the Congress
of Industrial Organizations, and Candy and Confectionery Workers Union,
Local 452, affiliated with the American Federation of Labor, are labor organi-
zations within the meaning of Section 2 (5) of the Act.
2. By recognizing Candy and Confectionery Workers Union, Local 452, affili-
ated with the American Federation of Labor, as exclusive bargaining repre-
sentative of its employees, by the execution of a contract with said union
covering employees in their plant, by giving effect to said contract, and by
other acts, the respondents have interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of the Act,
and thereby have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Pauline Grossman, Sara S. McMahon, and Christina McMahon, thereby dis-
couraging membership in United Retail, Wholesale and Department Store
Employees, C. I. 0., respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
4. All employees of respondents, exclusive of office employees and supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend such action,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
5. United Candy and Confectionery Workers Union, Local 50, was on August
21, 1944, and at all times thereafter has been, and now is, the exclusive repre-
sentative of respondents ' employees in such unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
T Chicago Apparatus Company and Federation of Architects, Engineers. Chemists and
Technicians, Local 107 , 12 N. L. R. B. 1002, 1025, enforced 116 F. (2d) 753 (C. C A. 7).
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By refusing on August 21, 1944 , and at all times thereafter to bargain
collectively with United Candy and Confectionery Workers Union , Local 50,
as the exclusive representative of their employees in the appropriate unit,
respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The respondents , by discharging Paul Vertuoso , have not engaged in unfair
labor practices within the meaning of Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that Jacob Garfunkel and Hyman Garfunkel, co-
partners , doing business under the trade name and style of Surprise Candy
Company, New York, New York , their agents , successors , and assigns shall :
1. Cease and desist from:
(a) Discouraging membership in United Candy and Confectionery Workers
Union , Local 50 , C. I. 0, or any other labor organization of their employees
by laying off, discharging , or refusing to reinstate any of their employees and
from refusing to employ any member of that union or in any other manner
discriminating in regard to the hire and tenure of employment or any term
or condition of employment ;
. ( b) Recognizing Candy and Confectionery Workers Union, Local 452, A. F.
of L., as the representative of any of their employees for the purpose of dealing
with respondents concerning grievances , labor disputes, wages, rates of pay,
hours of employment , or other conditions of employment ;
(c) Giving effect to their contract with Candy and Confectionery Workers
Union, Local 452, A. F. of L ., or to any modification , extension , supplement, or
renewal thereof ;
(d) Refusing to bargain collectively with United Candy and Confectionery
Workers Union , Local 50, C . I. 0., as the exclusive representative of their
employees in the unit heretofore found appropriate, with respect to rates of
pay, wages , hours of employment , or other conditions of employment;
(e) In any other manner interfering with, restraining , or coercing their
employees in the exercise of their rights to self-organization , to form labor
organizations , to join or assist United Candy and Confectionery Workers Union,
Local 50, C. I . 0., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Candy and Confectionery Workers Union,
Local 452 , A. F. of L., as representative of any of their employees for the
purpose of dealing with respondents concerning grievances , labor disputes,
wages, rates of pay, hours of employment , or other conditions of employment ;
(b) Reimburse each employee for membership dues or fees deducted from
his wages pursuant to the check -off provisions of the contract with Candy and
Confectionery Workers Union , Local 452 , A. F. of L., by payment to each
of them of a sum of money equal to the total of such dues or fees deducted
from his wages ;
SURPRISE CANDY COMPANY 21
(c) Offer to Pauline Grossman, Sara S. McMahon, and Christina McMahon,
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights and privileges;
(d) Make whole Pauline Grossman, Sara S. McMahon, and Christina Mc-
Mahon for any loss of pay they may have suffered by reason of respondents'
discrimination against them by payment to each of them of a sum of money
equal to the amount each would normally have earned as wages from the
date of the discrimination to the date of respondents' offer of reinstatement,
less the net earnings," of each during said period ;
(e) Upon request, bargain collectively with United Candy and Confectionery
Workers Union, Local 50, C. I. O , as the exclusive representative of all
employees of respondents, exclusive of office employees and supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise
effect changes of status of employees, or effectively recommend such action in
respect to rates of pay, wages, hours of employment, and other conditions
of employment ;
(f) Post immediately at its plant at New York, New York, copies of the
notice attached to the Intermediate Report herein, marked "Appendix A."
Copies of said notice, to be furnished by the Regional Director of the Second
Region, after being duly signed by the respondents, shall be posted by the
respondents immediately upon receipt thereof, and maintained by them 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 respondents to insure that said notices are not altered,
defaced, or covered by any other material;
(g) Notify the Regional Director of the Second Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
respondents have taken to comply herewith.
It is further recommended that unless the respondents notify said Regional
Director in writing within ten (10) days from the receipt of this Intermediate
Report that they will comply with the foregoing recommendations , the National
Labor Relations Board issue an order requiring the respondents to take the
action aforesaid.
It is further recommended that the complaint, ihsofar as it alleges that the
respondents discriminated in regard to the hire and tenure of employment of
Paul Vertuoso, be dismissed
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations , file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of
a statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such a
statement of exceptions and/or brief, the party or counsel for the Board filing
same shall serve a copy thereof upon each of the other parties and shall file
a copy with the Regional Director As further provided in said Section 33,
28 See footnote 26, supra.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of the order transferring the case to the Board.
SIDNEY L. FEILER,
Trial Examiner.
Dated June 23, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
PURSUANT TO THE RECOMMENDATIONS OF A TRIAL EXAMINER
of the National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, we hereby notify our employees that :
We will hot in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist UNITED CANDY AND CONFECTIONERY WORKERS UNION,
LOCAL 50, AFFILIATED WITH CONGRESS OF INDUSTRIAL ORGANIZATIONS or any
other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the
discrimination.
We will bargain collectively upon request with the above- named union
a the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment or
other conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement. The bargaining unit
is: all employees, exclusive of office employees and supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise effect
changes of status of employees, or effectively recommend such action.
We hereby further notify our employees that we no longer recognize CANDY
AND CONFECTIONERY WORKERS UNION, LOCAL 452, A. F. of L., as the repre-
sentative of any of our employees nor will we give any effect to the
contract previously signed with that union. All dues and fees deducted
from salaries pursuant to this contract will be refunded to our employees.
EMPLOYEES TO BE REINSTATED
Pauline Grossman
Sara S. McMahon
Christina McMahon
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard
SURPRISE CANDY COMPANY 23
to hire or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf of any
such labor organization.
JACOB GARFUNKEL and HYMAN GARFUNKEL, co-partners
doing business under the trade name and
style Of SURPRISE CANDY COMPANY,
Employer.
Dated .................. By .............................................
(Representative ) (Title)
NOTE: Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
11