Union Products Co.

National Labor Relations Board - Board Decisions

Dec 17, 1947

75 N.L.R.B. 591 (N.L.R.B. 1947)

In the Matter of BERNARD FIsCH, MAX HOROWITZ, AND FRANK HOMEL-
SKY, INDIVIDUALLY AND AS CO-PARTNERS, DOING BUSINESS UNDER
THE TRADE NAME AND STYLE OF UNION PRODUCTS COMPANY and IN-
TERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION
No. 3, AFL
Case No. 2-C-6228.-Decided December 17,1947
Mr. Richard J. Hickey, for the Board.
Mr. Nathan Newman, of New York City, for the Respondent Ber-
nard Fisch.
Mr. Nat Goldberg, of New York City, for the Union.
DECISION
AND
ORDER
On February 10, 1947, Trial Examiner William F. Scharnikow is-
sued his Intermediate Report in the above-entitled proceeding, finding
that the respondent, Bernard Fisch, had engaged in and was engaging
in certain unfair labor practices,' and recommending that he cease and
desist therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the'
respondent Fisch filed exceptions to the Intermediate Report and it
supporting brief.
The Board has considered the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief filed by the respondent Fisch, and the
entire record in the case, and hereby adopts the findings, conclusions
and recommendations of the Trial Examiner with the exceptions and
additions set forth below.2
'The provisions of Section 8 (1) and 8 (5) of the National Labor Relations Act, which
the Trial Examiner herein found were violated , are continued in Section 8 (a) (1) and
8 (a) (5) of the Act, as amended by the Labor Management Relations Act, 1947.
S We hereby correct the following findings of fact contained in the Intermediate Report :
The Trial Examiner found, at p. 601 of his Intermediate Report, that the respondent
Fisch , in retaining employees of the partnership in May 1946, exacted from them a
promise not to have anything to do with the Union until Fisch was able to negotiate
75 N. L. R. B., No 67.
591
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The complaint herein, dated October 29, 1946, was issued upon
an amended charge filed the same day. The complaint alleged that.
the respondents, Bernard Fisch, Max Horowitz, and Frank Homel-
sky, jointly and severally committed certain unfair labor practices
on October 30, 1945, and at various times thereafter. After the hear-
ing herein was concluded and after the respondent Fisch had sub-
mitted his exceptions and brief, Section 10 (b) of the National Labor
Relations Act, which formerly contained no limitation upon the time
within which a charge could be filed, was amended by the Labor Man-
agement Relations Act, 1947,3 to read in part :
That no complaint shall issue based upon any unfair labor
practices occurring more than six months prior to the filing of
the charge with the Board and the service of a copy thereof upon
the person against whom such charge is made ...
Some of the unfair labor practices alleged in the complaint hereili
took place more than 6 months before the charges were filed. We
are of the opinion, however, that the limiting language quoted above
does not apply in the circumstances here present. Neither the lan-
guage of the Labor Management Relations Act, 1947, nor its legisla-
tive history reveals a Congressional intent that this limitation upon
the issuance of complaints should be given retroactive effect. In
U. S. v. Saint Louis, San Francisco tt Texas Railway Company,4 the
Supreme Court of the United States considered the effect upon pend-
ing claims of an amendment 5 to the Interstate Commerce Act which
reduced from 6 to 3 years the period during which certain claims
could be filed. In holding that the 3-year limitation did not apply
to claims filed prior to the effective date of the amendment, Mr. Jus-
tice Brandeis said, speaking for the Court :
That a statute shall not be given retroactive effect unless such
construction is required by explicit language or by necessary im-
plication is a rule of general application. It has been applied
'by this Court to statutes governing procedure, United States Fi-
delity and Guaranty Co. v. United States, 209 U. S. 306; and
specifically to the limitation of actions under another section of
a contract. The record reveals, as indicated by the Trial Examiner at pp. 599-600 of
his Report, and we find, that this promise was exacted on or about March 20, 1946. The,
Trial Examiner found, at p. 602 of his Report, that the respondent Fisch's initial
refusal to bargain occurred on May 20, 1946. The record reveals, and we find, that
this refusal, like the exaction of the promise to refrain from union activity, took place
on or about March 20, 1946.
In conformance with the foregoing , we hereby correct paragraph 4 of the Trial Examiner's
Conclusions of Law by substituting therein the words "on or about March 20, 1946" for
the words "May 20, 1946."
8 Public Law 101, 80th Congress , 1st Sess.
4 270 U S 1.
6 Transportation Act of 1920, 41 Stat. 456.
UNION PRODUCTS COMPANY 593'
Transportation Act of 1920. Fullerton-Krueger Lumber Co. v.
Northern Pacific Ry. Co., 266 U. S. 435. There is nothing in the
language of paragraph 3 of § 16, or in any other provision of the
Act, or in its history, which requires us to hold that the 3-year
limitation applies under any circumstances, to causes of action
existing at the date of the Act.
Accordingly, we find that Section 10 (b) of the Act, as amended,
does not render invalid the complaint herein.
2. The Trial Examiner found that the respondent Homelsky, then
a partner of the respondent Fisch, violated Section 8 (1) of the Na-
tional Labor Relations Act by accusing employee Arginsky of being
an instigator of the Union's activity in the plant, and by expressing
surprise that Arginsky had not informed him of the union activity.
We are not persuaded, on the record herein, that the conversation re-
lied upon by the Trial Examiner constituted a sufficiently clear threat
to serve as a basis for such a finding. However, the record clearly
shows that during the course of this conversation Homelsky offered
Arginsky an individual wage increase as an alternative to union affilia-
tion. This offer constituted interference with the organizational ac-
tivities of the respondent's employees, within the meaning of the Act,
both as amended and before amendment.
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 the respondent, Bernard Fisch,
doing business under the trade name and style of Union Products.
Company, and his agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Electrical Workers, Local Union No. 3, AFL, as the exclusive
representative of all his production, stock and shipping employees,
exclusive of maintenance employees, office employees, officers of the
Company, executives and all other supervisors; and
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Electrical Workers, Local Union No. 3, AFL, or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed,
in Section 7 of the Act.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Brother-
hood of Electrical Workers, Local Union No. 3, AFL, as the exclusive
representative of all his production, stock and shipping employees,
exclusive of maintenance employees, office employees, officers of the
Company, executives and all other supervisors, with respect to rates
of pay, wages, hours, and other conditions of employment, and if an
understanding is reached, embody such understanding in a signed,
written agreement;
(b) Post at his place of business in Brooklyn, New York, copies
of the notice attached to the Intermediate Report, marked "Appendix
A." 6 Copies of said notice, to be furnished by the Regional Director
for the Second Region, shall, after being duly signed by the respondent
Bernard Fisch, be posted by him immediately upon receipt thereof,
and maintained by him 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 re-
spondent Bernard Fisch to insure that said notices are not altered, de-
faced, or covered by any other material; and
(c) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent Bernard Fisch has taken to comply herewith.
MEMBERS MURDOCK and GRAY took no part in the consideration
of the above Decision and Order.
INTERMEDIATE REPORT
Mr. Richard J. Hickey, for the Board.
Mr. Nathan Newman, of New York, N. Y, for the respondent, Bernard Fisch.
Mr. Nat Goldberg, of New York, N. Y., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed on October 29, 1946, by International Brother-
hood of Electrical Workers, Local Union No. 3, AFL, herein called the Union, the
National Labor Relations Board, herein called the Board, by its Regional Director
for the Second Region (New York, New York), issued its complaint dated October
29, 1946, against Bernard Fisch, Max Horowitz, and Frank Homelsky, individually
and as co-partners , doing business under the trade name and style of Union
Products Company, hereinafter referred to as the respondents and also, where
6 This notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner " and substituting in
• lieu thereof the words "A Decision and Order ." In the event this order is enforced by
decree of a Circuit Court of Appeals , there shall be inserted in the notice , before the words
"A Decision and Order ," the words , "A Decree of the United States Circuit Court of
Appeals Enforcing."
UNION PRODUCTS COMPANY 595
pertinent, as the partnership. The complaint alleged that the respondents engaged
in unfair labor practices within the meaning of Section 8 (1) 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 and the amended charge together with a
notice of hearing were duly served upon the Union and the respondent Fisch.
With respect to the unfair labor practices, the complaint alleged in substance
(1) that, on and since approximately October 30, 1945, the respondents, in viola-
tion of Section 8 (1) of the Act, (a) have expressed disapproval of the Union,
(b) have interrogated their employees concerning their union affiliations, (c)
have urged, persuaded, and warned their employees to refrain from assisting,
becoming members of, or remaining members of the Union, (d) have threatened
their employees with discharge or other reprisals if they joined or assisted the
Union, and (e) have kept under observation and surveillance the concerted
activities of their employees, and (2) that on and since approximately November
24, 1945, the respondents, in violation of Section 8 (1) and (5) of the Act, have
refused -to bargain collectively with the Union as the duly designated exclusive
bargaining representative of their employees in an appropriate unit.
The respondent Fisch filed an answer to the complaint in which lie denied the
allegations thereof concerning the unfair labor practices and also asserted, in
substance, (1) that the partnership was dissolved on or about March 20, 1946;
(2) that the respondent Fisch has since conducted the business as "a new, separate
and distinct entity having no relation or affiliation with the enteiprise" of the
dissolved partnership; (3) that the employees of the respondent Fisch "are
employ ed and engaged by him personally and such employment is not a continu-
ation' of the dissolved partnership; and (4) that the employees of the respondent
Fisch have not selected the Union as their bargaining agent In his answer, the
respondent Fisch also petitioned the Board to hold an election among his employees
to determine whether they desire to be represented by the Union in collective
bargaining.
Pursuant to notice, a hearing was held in New York, New York, on November
12 and 13 ,1946, before the undersigned Trial Examiner, duly designated by the
Chief Trial Examiner. Neither the respondent Horowitz nor the respondent
Honielsky appeared in person, by agent, or by counsel However, the Board and
the respondent Fisch, appearing by counsel, and the Union appealing by repre-
sentative, participated in the healing and weie afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues At the beginning of the hearing, during the hearing, at the
conclusion of the Board's evidence, and again at the conclusion of the hearing,
the undersigned denied motions by counsel,foi the iespondent Fisch to dismiss
the complaint as to him At the conclusion of the hearing, the undersigned also
denied a motion by counsel for the respondent Fisch that an election be conducted
among his employees to determine whether or not they desire to be represented
by the Union for the purpose of collective bargaining. At the same time, the
undersigned granted unopposed motions by counsel for the Board and for the
respondent Fisch to amend the complaint and the answer, respectively, to conform
to the proof in such minor matters as the spelling of names and dates The hear-
ing was closed after oral argument before the undersigned by counsel for the
Board and counsel for the respondent Fisch. Although the parties were advised
at the end of the hearing of their right to file briefs and proposed findings of fact
and conclusions.of law, none has been received by the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
766972-48-vol 75-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
From the end of April 1945 until March 17, 1946, the respondents Bernard Fisch,
Max Horowitz, and Frank Homelsky, a co-partnership doing business as Union
Products Company, were engaged at Brooklyn, New York, in the manufacture
and sale of electric heaters, hot plates, and electric stoves. On March 17, 1946,
they executed an agreement dissolving the partnership. On March 20, 1946,
they sold the partnership's business, including its trade name and all its equip-
ment to one Jack Wolf who, on the same day, resold them in entirety to the
respondent Fisch. Since that date, the respondent Fisch, doing business as Union
Products Company, has engaged in the business previously operated by the part-
nership and in the identical quarters.
From April 27,1945, to March 20, 1946, the partnership purchased raw materials
used in its business of an approximate value of $25,000 and sold products of an
approximate value of $50,000. From March 20, 1946, to October 9, 1946, the
respondent Fisch purchased raw materials of an approximate value of $9,000 and
sold products of an approximate value of $18,000. In the cases of both the part-
nership and the later individual business of the respondent Fisch, approximately
10 percent of the raw materials of the business was derived from, and approxi-
mately 70 percent of the products was shipped to points outside the State of
New York.
The undersigned finds that the respondent partnership was engaged in, and
since March 20, 1946, the respondent Fisch has been engaged in, commerce within
the meaning of the Act.
II THE ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local Union No 3, AFL, is a
labor organization which admitted to membership employees of the respondent-
partnership and which admits to membership employees of the respondent Fisch.
III THE UNFAIR LA13OR PRACTICES 1
A. Events during the partnership period
. On October 18, 1945, a number of the partnership's employees having previously
joined the Union, the Union sent a letter to the partnership, claiming that it
represented a majority of the partnership's employees, enclosing a proposed form
of contract between the Union and the partnership, and stating that the Union
would later communicate with the partnership to arrange an appointment for a
collective bargaining conference On the same day, the Union filed with the
Board at its Second Regional Office in New York City, a petition for an investiga-
tion and certification of representatives of the partnership's employees pursuant
to Section 9 (c) of the Act.'
In early November 1945, according to the testimony of the witnesses produced
by counsel for the Board, each of the respondent-partners expressed to various
employees his displeasure with their activities on behalf of the Union, and on
November 2 and 3 respectively, the respondent-partnership laid off union members
Sam Rosenblum and Jacob Arginsky. Thus, according to the uncontradicted
1 Unless otherwise indicated , the findings of fact herein are based upon uncontradicted
evidence
2 The petition , though executed on October 16, 1945 , was not filed with the Regional
Office until October 18, 1945.
UNION PRODUCTS COMPANY 597
testimony of employee Pearl Cohen, which the undersigned credits, the respond-
ent Horowitz told Cohen, in a conversation concerning the absence of dressing -
rooms for the girl employees, that he had once been a member and a shop steward
of the Union and that he worked in union shops that were 10 times worse than
the partnership's shop. He then called Business Representative Nat Goldberg;
of the Union a crook and said that the Union was out to get the workers' money.-
According to the uncontradicted, testimony of Jacob Arginsky, which the under-
signed credits , the respondent Homelsky accused him on Saturday, November 3,
of being the instigator of the Union's activity in the plant, saying also that lie
was surprised because Arginsky, as one of the oldest employees, had not informedi
him of the dissatisfaction and union activity among the employees At the end.
of the clay, Arginsky was laid off allegedly because of lack of work On the-
preceding day, November 2, according to the testimony of Rosenblum, the respond-
ent Fisch had told Rosenblum that he was laid ott because of his union activity..
Neither Horowitz nor Homelsky testified, nor was any explanation given at the:
bearing for their failure to do so The respondent Fisch, in his testimony, denied(
not only that he had told Rosenblum he was being laid off for union activities
but also that the partnership had either laid off or discharged Arginsky or
Rosenblum . The undersigned, however, credits the testimony of Cohen, Arginsky,
and Rosenblum as to their respective conversations with each of the respondent-
partners and as to Arginsky's and Rosenblum's lay-oils.
The lay-offs resulted in the Union's calling a special meeting of its members
among the partnership's employees on November 3, at which meeting a majority
of them voted to go on strike. The strike lasted 2 weeks. During that period,
the Union's representatives and the partnership conferred for the first time. On
November 15 at the second of these conferences held at the Board's Regional
Office in New York City and attended by Horowitz and Fisch for the partnership,3
the parties settled the strike by an oral agreement for the reinstatement of 10
of the partnership's employees, including Arginsky and Rosenblum In passing-,
it should be noted that within a few days the partnership resumed operations with-
these employees as their only production, stock, and shipping employees and
that, by the time of the partnership's eventual dissolution on March 17, 1946, its,
staff had been reduced to 7 employees.
At the conference of November 15, 1945, at the Board's Regional Office, tlie'
Union and the partnership also executed, and the Board's Regional Director
approved, a written agreement: (1) that all production, stock, and shipping em--
ployees of the partnership except for maintenance employees, office employees,
officers of the Company, executives , and all supervisory employees with author--
ity to hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees or effectively recommend such action, constituted a unit appropriate-
for the purposes of collective bargaining ; and (2) that the Regional Director,
by a cross-check of the Union's authorization cards and the respondent's pay-roll'
list and tax withholding certificates for November 3, 1945, should determine
whether a majority of the employees in the appropriate unit desired to be repre-
sented by the Union for the purposes of collective bargaining The agreement
further provided that should it appear from the cross-check that a majority of
the employees in the unit had designated the Union as their representative, the,
partnership should thereupon post a notice'of that fact and a copy of the cross-
8 Horowitz had alone appeared for the partnership at the first conference held at the-
Union's office on November 10
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
check agreement for a period of 5 days, at the end of which time, no cause
to the contrary being shown, the Regional Director should then issue his Report
on Cross-Check, finding and determining that the Union had been designated and
selected as the exclusive bargaining representative of the employees in the
appropriate unit.
On or about November 19, 1945, the Regional Director advised the parties
that, according to the cross-check made by him pursuant to their agreement, a
majority of the employees in the appropriate unit had designated the Union as
their collective bargaining representative On November 26, the respondent
Fisch informed the Regional Director by letter that he had posted the requisite
notice as to the result of the card check and also a copy of the cross-check agree-
ment. On December 3, 1945, the Regional Director issued his Report on Cross-
Check, finding that 20 of the 22 employees in the unit had designated the Union
as their representative, and finding and determining also that, no cause to the
contrary having been shown, the Union was then the exclusive bargaining repre-
sentative of all the employees in the appropriate unit agreed upon by the parties.
In the meantime, on or about November 24, 1945, after the parties had been
advised by the Regional Office of the result of the cross-check, Business Repre-
sentative Nat Goldberg of the Union met with respondents Horowitz and Fisch
and the partnership's attorney, Hainick. The respondents objected to the form
,of the contract submitted by the Union in October, suggesting that the form of
a contract then held by the Union with another manufacturer of heaters would
be more suitable. Goldberg agreed to submit such a contract' After some dis-
cussion, the parties agreed that any wage increases which might result from
their negotiations should be retroactive to November 19, 1945, and that a further
meeting would be held on December 6, 1945.5
On December 1 or 2, however, Horowitz advised Goldberg by telephone that
the partnership was not ready to negotiate and that there would be no meeting
on December 6, 1945, as planned. On or about December 3, Goldberg visited
the partnership's place of business and was told by Horowitz and Fisch that
arrangements for further negotiations were up to Attorney Hannick. Hainick,
upon being called upon the telephone by Goldberg, told Goldberg lie was not
ready but would have to see his clients first. Thereafter, upon visiting the
,partnership's plant in the latter part of December 1945 and the beginning of
January 1946 Goldberg was told again by Horowitz and Fisch that they would
not discuss the contract but would leave the matter to Attorney Hainick.
On the last of these occasions, Fisch also told Goldberg that Homelsky and
Horowitz were practically not on speaking terms Goldberg mentioned this to
Hancock in his next telephone request for a bargaining conference in January,
whereupon Hainick said he had not heard of the friction between the partners
and that he would have to contact his clients before he made any attempt to
arrange a further meeting.
Hearing nothing thereafter from the partners or Attorney Hainick, Goldberg
visited Horowitz and Fisch at the plant early in March 1946, and was informed
by them of a split in the partnership and that they could do nothing about
4 Whether such a form of contract was thereafter submitted by the Union to the partner-
ship is not clear from the recoil.
5 The findings thus made ate based upon the testimony of Business Agent Goldberg which
was not contradicted by respondent Fisch in his testimoni Argumsky, who was pieseut at
this meeting, testified that the respondent Fisch said he was in no position to comply with
the requests made in the contract as to holidays, raises in pay, and paid vacations and
that he would have nothing to do with any part of the contract The undeisigned, however,
regaids Goldberg's testimony as to these matters as more likely to be accurate.
UNION PRODUCTS COMPANY 593E
bargaining until they knew what was to be done with the business Fisch also
said he was not in a position to do anything without a lawyer. So far as the
record shows, this was the last communication between the Union and any of
the respondents before the dissolution of the partnership.
B. Events din wig ? espondent Fisch's sole operation of the business
As has already been noted, the partnership was dissolved on March 17, 1946,
and the respondent Fisch, having bought the partnership's assets and business
on March 20, 1946, has continued the same business, though in reduced volume, at
the same place, under the same trade name, and with the same equipment. In
doing so, Fisch has never employed more than seven production, stock, and
shipping employees, was employing only four at the time of the hearing, and had
begun his operations on or about March 20, 1946, with only five, including Aigi nsky
and Rosenblum, all of whom were retained from the partnership's staff an([
were known by Fisch to have served as pickets for the Union during the Novem-
her 1945 strike In notifying these men of their retention, however, Fisch
exacted from them a'promise that they would have nothing to do with the Union
until such time as he felt that he was able to negotiate on a contract.6
In June 1946, Goldberg resumed the Union's attempts to bargain As a result,
he met Fisch twice in June and once in July. At the first of these meetings, Fisch,
offered to sign an agreement without provision for any wage increases or em-
ployee-benefits At the second meeting on June 6, Goldberg showed Fisch a form
of contract and at Fisch's request, promised to mail Fisch a copy That meeting
ended with an arrangement to meet again on Jrine 13 Although Fisch did not
keep his engagement on June 13, it appears by way of possible explanation that
he slid not receive the promised copy of the contract from Goldberg until June 19_
In any event, Goldberg and Fisch did meet again sometime in July 1946. At this
meeting which was held in Fisch's office, Goldberg stated that the Union would
not insist that the wage increases provided for in the Union's proposed contract
should be retroactive to November 19, 1945, as previously agreed upon with
Horowitz. Fisch thereupon called in Arginsky and Rosenblum to prove to Gold-
berg that the men were satisfied and did not want a wage increase. When both
Arginsky and Rosenblum told Fisch, in Goldberg's presence, that they would not
agree to a contract containing no wage increases, Fisch said that, before he could
consider the Union's wage demands, he would have to consult his former partner,
Honielsky, and that he would then communicate with Goldberg.
Not heat mg from Fisch, Goldberg called him on the telephone three times after
their last conference On the first telephone call, a few days after their meeting,
Fisch told Goldberg that he had been busy, that lie spent every week end in the
country, and that he had been unable to speak with Honielsky. On the second
telephone call, Fisch promised Goldberg definitely to contact Honielsky and
discuss the problem On the third telephone call a week later, Fisch told Gold-
berg that he still had been unable to contact Honielsky and that "he would get
in touch with [Goldberg] if and when lie slid contact Honielsky " Until the time
of the hearing, Fisch had not communicated with the Union.
Approximately it week or 10 days before the hearing, which began on November
12, 1946, Sam Rosenblum, who had in the meantime left Fisch's employ, visited
Fisch and asked for a job According to Rosenblum's testimony Fisch agreed
This finding is based upon the testimony of Arginsky and Rosenblum Fisch. in his
testimony, did not specifically deny having insisted upon such a promise although he gen-
eially denied having discussed - with his employees "any action taken of to be taken" or
having "made any threats in connection with the alleged union activity " of his employees.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to give him a job, "providing [Rosenblum] had nothing to do with [the Union]."
Fisch denied this and testified that he had merely refused Rosenblum's request
that he be given a job without notification to the Social Security Board, so that
Rosenblum, as a veteran, might continue to draw veterans' benefits as "a member
of the 52-20 club." The undersigned credits Rosenblum's version of Fisch's rejec-
tion of the job application shortly before the hearing.
C. Conclusions
1. The continuous business and the respondent Fisch's responsibility for unfair
labor practices committed in the course thereof
The complaint in the present proceeding alleges the commission of unfair labor
practices by the respondents Bernard Fisch, Max Horowitz, and Frank Homelsky,
individually and as co-partners, doing business under the trade name and style
of Union Products Company, between October 30, 1945, and October 29, 1946, the
date of the issuance of the complaint. As has already been noted, the partner-
ship was dissolved on March 17, 1946. Since that date, the respondent Fisch alone
bas conducted the same business under the same trade name, and in the partner-
ship's former quarters at 109 Watkins Street, Brooklyn, New York.
According to an affidavit of service admitted in evidence, the present proceeding
was instituted by mailing a copy of the complaint and the amended charge, by
registered mail on October 29, 1946, to "Bernard Fisch, Max Horowitz, and Frank
Hormelsky, [sic] individually and as co-partners doing business under the trade
name and style of Union Products Company, 109 Watkins Street, Brooklyn, New
York." While the respondent Bernard Fisch was thus properly served, there
might be some question as to whether there was valid service upon either the
irespondent Max Horowitz or upon the respondent Frank Homelsky, because they
mno longer did business at the Watkins Street address.
However, it is unnecessary to decide this particular question in the present case.
At the hearing, counsel for the Board stated in substance that he sought a re-
nnedial order only against the respondent Bernard Fisch, as one of the original
partners and as the continuing proprietor of the business in which unfair labor
-practices allegedly occurred. Assuming the commission of unfair labor practices,
the position thus taken is sound. During the entire period of time covered by the
complaint. Fisch was always one of the owners of the business and was, therefore,
continuously an "employer" responsible for any unfair labor practices which may
have been committed. The transition from the partnership to his individual pro-
prietorship not only did not affect the continuity of his responsibility as an
employer, but resulted in no substantial change either in the business, its methods
of operating or in the employees engaged therein. He continued operations in the
same quarters, made and sold the same products, and utilized the same equipment
as had the partnership. Moreover, the five employees with whom Fisch continued
the business were all retained from and had constituted substantially all of, the
partnership's staff at dissolution 7
Upon these undisputed facts, and the fact that the respondent Fisch as the
present sole employer and owner of the business is the only person who is in a
position either to continue or to remedy any past unfair labor practices, the under-
7 As has been noted, the partnership's staff had been sharply reduced from approximately
22 to 10 at the end of the strike in November 1945, when the Union's status as exclusive
bargaining representative was established, and had then gradually declined to 7, 5 of
-,whom Fisch retained.
UNION PRODUCTS COMPANY 601
signed is of the opinion that the complaint herein is being properly prosecuted
against the respondent Fisch for all unfair labor practices which may have been
committed in the conduct of the business during the period of the partnership and
since its dissolution.
2. Interference, restraint, and coercion
As has already been noted, (1) the respondent Homelsky, then a partner of the
respondent Fisch, accused employee Arginsky of being an instigator of the Union's
activity in the plant and expressed surprise that Arginsky had not informed him
of the Union's activity; (2) the respondent Fisch told employee Rosenblum that
lie was laid off because of his union activity; (3) the respondent Fisch, in re-
taining employees of the partnership in May 1946, exacted from them a promise
not to have anything to do with the Union until Fisch was able to negotiate on a
contract; and (4) the respondent Fisch refused to reemploy Rosenblum in
November 1946 unless he promised to have nothing to do with the Union.
'T'hus it appears that the respondent Homelsky, acting for the partnership of
which he and the respondent Fisch were members, reprimanded an employee for
his participation in union activities without advising his employers; and that the
respondent Fisch himself informed an employee of his lay-off because of Union
activities, required a promise from his employees, as a condition of employment,
that they would postpone collective bargaining attempts, and refused to reemploy
one of them unless he abandoned his association with the Union. The under-
signed finds that these acts and statements constituted interference with, re-
straint, and coercion of the employees in their exercise of the rights guaranteed
in Section 7 of the Act.
3. The appropriate unit and the Union's representation of a majority of the
employees therein
It will be recalled, as the undersigned has previously found, that in the cross-
check agreement of November 15, 1945, the partnership and the Union specifically
agreed upon the.unit of employees which was appropriate for the purposes of
collective bargaining Thereafter, the Board's Regional Director, pursuant to
the agreement. determined from a cross-check of the Union's authorization cards
and the partnership's pay-roll records, and then advised the parties, (1) that
20 of the 22 persons in the appropriate unit had designated the Union as their
representative, and (2) that the Union was therefore the duly designated exclu-
sive bargaining representative of all the employees in the unit. The composition
of this unit subsequently declined to 7 employees by the time the partnership was
dissolved. Thereafter, as has been found, the same business was continued by
the respondent Fisch with 5 of these 7 employees.
No attack has been made in the present proceeding or at any time during the
history of the case, either upon the appropriateness of the stipulated partnership
unit or the Union's status as the exclusive bargaining representative of the em-
ployees in that unit, except by unsupported, and apparently pro forma, general
denials in the respondent Fisch's answer to the complaint. Even after the disso-
lution of the partnership, when requested by the Union to bargain on a contract
covering his employees, the respondent Fisch did not challenge either the appro-
priateness of a continuing unit embracing the same categories of his employees,
or the Union's right to act as their exclusive bargaining representative. On the
contrary, the respondent Fisch met several times with the Union in ostensible
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract negotiations in June and July 1946. Furthermore in his testimony he
lent clear support to the normal finding that the appropriateness of a bargaining
unit of employees and the established majority designation of their representa-
tive survive a mere change in the ownership of the business, by admitting not
only his continued employment of substantially all of the employees in the unit
as it existed at the end of the partnership, but his knowledge that all of the
partnership's employees retained by him had signified their adherence to the
Union by acting as pickets in the November strike
Under the circumstances, the undersigned finds (1) that at all times mates 1a1
herein all production, stock, and shipping employees of the respondent Fisch,
individually and formerly as a member of the co-partnership otherwise composed
of Max Horowitz and Frank Homeisky, exclusive of nuc4nten.unce employees, office
employees, officers of the Company, executives, and all supervisory employees
with authority to hire, promote, discharge, discipline or otherwise effect changes
in the status of employees or effectively recommend such action, have constituted
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act; and (2) that, on and since December 3, 1945, the
Union has been, and is, the duly designated bargaining representative of a ina-
jority of the employees in the appropriate unit and that, pursuant to the pro-
visions of Section 9 (a) of the Act, the Union has been, and now is. the exclusive
representative of all the employees in the said unit, for the purposes of collective
bargaining with respect to rates of pay, wages, hones of employment, and other
conditions of employment.
4. The refusal to bargain
In its endeavors to negotiate a contract on behalf of the employees involved
in the present case, the Union was confronted with a series of delays, interposed
first by the partnership, including the respondent Fisch, and then by the
respondent Fisch alone after the dissolution of the partner ship. While it might
not have been unreasonable to postpone contract discussions for a short period
pending the settlement of the friction between the partners, the partnership
apparently made their difficulties the basis for a delay from January to the middle
of May 1946, a period of 41/_^ months, during which substantial period the
employees were consequently deprived of the benefits of the effective representa-
tion contemplated by the Act.
It is unnecessary, however, to determine in the present case whether the
partners thereby refused to bargain collectively with the Union within the mean-
ing of Section 8 (5) of the Act For their appueutly inexcusable indifference
to their employees' right to bargain through the Union was climaxed by the
respondent Fisch's evasion of his obligation to bargain with the Union after the
dissolution of the partnership. His insistence, on or about May 20, 1946, that
as a condition of employment, his employees postpone the Union's attempt to
bargain on their behalf; his summoning employees Acgutsky and Rocenbinm to a
conference with the Union's negotiator in July 1946; his direct personal appeal
to these employees at that time to repudiate the efforts of the Union as their
representatives to obtain wage increases ; and his failure thereafter to keep his
promise to make an appointment for further negotiations with the Union on wage
rates, in spite of the Union's repeated requests that he do so, all demonstrate a
clear refusal on his part to bargain collectively with the Union within the meaning
of the Act.
I
UNION PRODUCTS COMPANY 603
The undersigned therefore finds that on and since approximately May 20, 1946,
the respondent Fisch has refused to bargain collectively with the Union as the
exclusive bargaining representative of his employees in the appropriate unit and
has thereby Interfered with, restrained, and coerced his employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent Fisch individually and as a member of the
partnership otherwise composed of Max Horowitz and Frank Homelsky, as set
forth in Section III, above, occurring in connection with the operations of the
respondent Fisch, individually and as a member of the aforesaid partnership,
described in Section I, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. TILE REMEDY
Since it has been found that the respondent Fisch has engaged in unfair labor
practices within the meaning of Section 8 (1) and ()) of the Act, the undersigned
will recommend that the respondent Fisch cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
It has been found that the respondent Fisch not only refused to bargain collec-
tively with the Union but reprimanded an employee for engaging in union activi-
ties without notice to his employer, notified an employee he was laid off because
of his union activities, required a promise from his employees as a condition of
employment that they would postpone collective bargaining attempts, and refused
to reemploy one of them unless lie abandoned his association with the Union The
respondent Fisch thereby demonstrated his unmistakable "attitude of opposition
to the purposes of the Act to protect the rights of employees generally." e The
undersigned will, therefore, recommend that the respondent Fisch cease and de-
sist from in any manner infringing upon the rights of employees guaranteed in
Section 7 of the Act.
The undersigned has found that the respondent Fisch refused to bargain
collectively with the Union although the Union was the exclusive representative
of his employees in a unit appropriate for the purposes of collective bargaining.
Accordingly, the undersigned will recommend that the respondent Fisch, upon
request, bargain collectively with the Union as the representative of his employees
in the appropriate unit
Upon the basis of the above findings of fact, and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF L.\w
1. International Brotherhood of Electrical Workers, Local Union No. 3, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. At all times material herein, all production, stock and shipping employees of
the respondent Fisch, individually and as a member of the co-partnership other-
wise composed of Max Horowitz and Frank Homelsky, exclusive of maintenance
employees, office employees, officers of the Company, executives and all supervisory
8 ltay Department Stores Company v. N L. R. B , 326 U. S. 376.
a
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees with authority to hire, promote, discharge, discipline or otherwise effect
changes in the status of employees or effectively recommend. such action, have
constituted and now constitute an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3 On or about December 3, 1945, and at all times thereafter, International
Brotherhood of Electrical Workers, Local Union No. 3, AFL, has been the exclu-
sive representative of the employees in the above unit for the purposes of collec-
tive bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on or about May 20, 1946, and at all times thereafter, to bargain
collectively with International Brotherhood of Electrical Workers, Local Union
No. 3, AFL, as the exclusive representative of the employees in such unit, the
respondent Bernard Fisch has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent Bernard Fisch
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the respondent Bernard Fisch, doing business
under the trade name and style of Union Products Company, Brooklyn, New York,
his agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brotherhood of Elec-
trical Workers, Local Union No. 3, AFL, as the exclusive representative of all his
production, stock and shipping employees, exclusive of maintenance employees,
office employees, officers of the Company, executives and all supervisory em-
ployees, with authority to hire, promote, discharge, discipline or otherwise effect
changes in the status of employees or effectively recommend such action, in
respect to rates of pay, wages, hours, and other conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join or assist International` Brotherhood of Electrical workers, Local
'Union No. 3, AFL, 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, 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) Upon request bargain collectively with International Brotherhood of
Electrical Workers, Local Union No 3, AFL, as the exclusive representative of
all his production, stock and shipping employees, exclusive of maintenance em-
ployees, office employees, officers of the Company, executives and all supervisory
employees with authority to hire, promote, discharge, discipline or otherwise
effect changes in the status of employees or effectively recommend such action,
in respect to rates of pay, wages, hours, and other conditions of employment ;
and if an agreement is reached, embody such understanding in a signed, written
agreement ;
UNION PRODUCTS COMPANY 605
(b) Post at his place of business in Brooklyn , New York, copies of the notice
attached hereto marked "Appendix A". Copies of said notice , to be furnished by
the Regional Director for the Second Region, shall , after being duly signed by
the respondent Bernard Fisch , be posted by him immediately upon receipt thereof,
and maintained by him 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 Bernard Fisch to insure that
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 the receipt of this Intermediate Report, what steps
the respondent Bernard Fisch has taken to comply with the foregoing recom-
mendations.
It is further recommended that unless on or before ten (10 ) days from the date
of the receipt of this Intermediate Report, the respondent Bernard Fisch has noti-
fied the Regional Director for the Second Region in writing that he will comply
with the foregoing recommendations , the National Labor Relations Board issue
an order requiring the respondent Bernard Fisch to take the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, NKithin fifteen ( 15) days from the date of service of
the order transferring the case to the Board , pursuant to Section 203.38 of
said Rules and Regulations , file with the Board, Rochambeau Building, Wash-
ington 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 ; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director.
Proof of service on the other parties of all papers filed with the Board shall
be promptly made as required by Section 203.65. As further provided in said
Section 203 39, 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 service of the order transferring the case to the Board.
WILLIAM F. SCHARNIKOW,
Trial Examiner.
Dated February 10, 1947.
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 NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL UNION No. 3, AFL, or any other labor organization, to
bargain collectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining or other
(606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mutual aid or protection. All our employees are free to become or remain
members of this union, or any other labor organization.
WE WILL EARGAIN collectively upon request with the above-named union
.as 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 production, stock and shipping employees, exclusive of maintenance
,employees, office employees, officers of the Company, executives and all
supervisory employees with authority to hire, promote, discharge, discipline
,or otherwise effect changes in the status of employees or effectively recom-
mend such action.
BERNARD FISCH, TRADING AS UNION PRODUCTS COMPANY,
By --------------------------------=----------------- ------
(Representative) ( Title)
-Dated------------------------
This notice must remain posted for 60 days from the date hereof, and must
.not be altered, defaced, or covered by any other material.