Fine Art Novelty Corp.

In the Matter of FINE ART NOVELTY CORPORATION and LOCAL 45-B, UNITED FURNITURE WORKERS OF AbILR1OA, C. 1. 0. Case No. C-2714.-Decided Janua2 y 12 , 1944 DECISION AND ORDER On August 30, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report annexed hereto. The respondent and the Union thereafter filed ex- ceptions to the Intermediate Report. The Board has reveiwed the rulings made by the Trial Examiner at the, hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon request of the Union, and pursuant to notice, a hearing was held before the Board in Washington, D. C., on November 18, 1943, for the purpose of oral argument. The respondent and the Union appeared and were represented by counsel at the hearing. The Board has considered the Intermediate Report, the exceptions of the parties, and the entire record in the case,,and hereby adopts the findings, con- clusions, and recommendations made by the Trial Examiner, with the following exceptions, modifications, and additions : 1. The Trial Examiner found that the respondent is not responsible for the activities of Clothilde Monez and Fannie Testa. We do not' agree with this finding. The bedspread department, in which Monez occupied a position directly under Foreman Zaum, employed 67 operators and 16 floor girls. The slip cover department, of which Bromberger was foreman and in which Testa performed duties similar to those of Monez in the bedspread department, employed 37 operators and 7 floor girls. Monez and Testa were in charge of their respective departments in the absence of the foreman ; supplied the operators with materials and transmitted the foreman's orders to them; in- structed new operators; and collected the finished products from the machines. They were paid for vacations, holidays, and for a full day regardless of whether they worked the required 8 hours, benefits 54 N L R. B., No 76. 480 FINE ART NOVELTY CORPORATION 481 which were not accorded the operators. Employees of both depart- ments testified that the operators considered Monez and Testa to be their foreladies; and that Monez and Testa criticized their work and conduct, granted them permission to be absent from work, and noti- fied them of changes in working hours. Employee Anna Jenkins testified that on one occasion Monez asked her to "give an account" of herself for being absent the preceding day without her permission. Jenkins and Mary Thomas testified that Monez reprimanded em-_ ployees for talking and ordered them to "get out the work." Cutter Harold Mont testified that he had heard'Monez reprimand employees for spending too much time in the rest room. Celia Moskowitz testi- fied that Testa gave her instructions as to the work and that "she hollers up ... `What is going on up there? I told you to keep quiet now."" Moskowitz also testified that shortly before the strike Testa told her, "Listen here, I am telling you to do it this way, and do it as I tell you now." Rose De Ninno testified that Testa managed and distributed work, showed the girls how to do it and made sure that they kept working, and that occasionally she would "quiet the girls down." She also testified that Testa once told the operators, "I am the boss here now; you have to take orders from me." Lillian Birdsall testi- fied that shortly before the strike Testa issued a rule which forbade more than one girl from going to the rest room at the same time. Monez and Testa denied that they exercised any supervision over the operators or that they reprimanded or disciplined them in any way. Upon a careful consideration of their testimony and of the entire record, we do not credit their denials. It is clear, and we find, that Monez and Testa occupied supervisory positions in relation to the operators, that they held themselves out in such a capacity to the em- ployees with the knowledge and consent of the respondent, and that the employees considered them to be part of management. Monez and Testa had occupied their positions for a considerable length of time and, throughout this period, had exercised the normal functions of supervisory personnel. So far as the record shows, the respondent at no time informed the operators that Monez and Testa did not have such authority, nor did it undertake to curb the exercise thereof by Monez and Testa. The Trial Examiner found that Monez and Testa criticized the work and conduct of the employees ; that they exercised minor supervisory functions; that Monez was "regarded by the em- ployees as identified with management"; and that Testa "represented herself to be in charge of the operators." He further found, how- ever, that they were not responsible for production and that, since they had no authority to hire, discharge, or recommend such changes in status, the respondent is not responsible for their activities. We do not agree that Monez and Testa were not in some degree responsible 507900-44-vol. 54-32 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' for production in view of the fact that they assigned the work, in- structed the operators as to its performance, and kept the work flow- ing, under the general supervision of their respective foremen. Nor do we consider decisive of their status their lack of authority to effec- tuate changes in the employees' tenure. In view of their general authority outlined above, the fact that with the respondent's approval, they held themselves out to the employees as representing management, and the fact that their anti-union conduct, as hereinafter set forth, was consistent with that of the respondent's higher officials, the em- ployees had just cause to believe, as in fact they, did, that Monez and Testa were acting for and on behalf of the respondent. Upon the entire record, we find that the respondent was responsible for the activities of Monez and Testa.' 2. The Trial Examiner recommended that the complaint be dis- missed insofar as it alleges that the respondent assisted TWUA. We do not adopt his recommendation in this respect. The record shows that during the Union's campaign for members in the respondent's plant Monez and Testa engaged in activities de- signed to coerce the employees to refrain from joining the Union. Leopoldina Klein testified that Monez asked her, shortly after the Union began organizing, if she had attended the first meeting of the Union and that, when Klein answered affirmatively, Monez told her that the Union was "no good." Rose Schwartz testified that Monez also asked her if she had attended a union meeting; and that she over- heard a conversation in which Monez told another employee that "a few of the girls joined up and they don't know what they are doing, and that the bosses will never sign a contract with them." Rose Gold- schmidt testified that Monez told her, "You are a fool trusting the Union. You won't get anything out of the Union." Other witnesses testified to similar statements by Monez during the period of a few weeks before the strike. 'Meanwhile, Testa was making the same type of statements to employees in her department. 'Rose De Ninno testi- fied that she heard Testa tell employee Tempeste, "I feel sorry for the girls that join the Union. They will be sorry"; and Betty Safian testified that, while she was attempting to secure the application of Minnie de Lucia during the lunch, hour, Testa approached them and said, "she (de Lucia) didn't have to sign (sic) the Union; that all the girls who signed (sic) the Union would get what was coming to them." Monez and Testa denied having made these statements and the Trial Examiner did not resolve the conflict in testimony because of his conclusion that the respondent was not responsible for the activities of Monez and Testa. However, the Trial Examiner refused 'Cf. International Ass'n. of Machinists v. N. L. R . B., 311 U. S. 72, aff'g 110 F. (2d) 29, enf'g 8 N. L R. B. 621. FINE ART NOVELTY CORPORATION 483 to credit them in certain other respects where he did resolve conflicts in testimony. Since the record indicates that these statements are con- sistent with the general pattern of conduct admittedly engaged in by Monez and Testa in encouraging membership in the TWUA and dis- couraging membership in the Union, and upon a full consideration of the record, we find that they made the statements attributed to them. The first activity of TWUA disclosed by the record occurred on December 7, 1942, when TWUA distributed leaflets near the door of the plant. On December 14, 1942, the Union, which for several days had unsuccessfully sought a conference with the respondent, claimed to represent a majority of the respondent's employees, offered its cards as proof of such majority, and requested that the respondent enter into bargaining negotiations. The respondent, asserting that a similar claim of representation had been advanced by TWIJA, refused to recognize the Union and demanded that an election be conducted by the Board to determine which organization represented a majority of the employees.. The Union thereupon called a strike the next day. Monez, who, according to her own testimony, had previously told some employees that she was not interested in unions and that no union was necessary because "the Fine Art bosses are very good and co- operate with the workers a hundred percent," advised the employees who had not gone out on strike that the Union was not a "proper union to join." She testified that "we knew we had to form a union" and that she told the girls, "if we have to join a union, let's get in with the right union, because I do not like the way these people outside conduct their union, meaning the Local 45-B." Thereafter, Monez and Testa, along with some 15 or 20 employees, went to the office of TWUA, where a number of them signed application cards. No appli- cation for membership in TWUA had been signed by any employee of the respondent prior to this time. The record shows that Monez and Testa attended another TWUA meeting on December 21. On December 18 a meeting was held at which the respondent, the Union, and TWUA were represented. The Union again offered its cards as proof of its majority status but the respondent insisted upon an election. The Union thereupon agreed to an election but TWUA withheld its consent. Thereafter, pursuant to the suggestion of a Field Examiner for the Board, both unions submitted their applica- tion cards to the Field Examiner, and the respondent furnished him with a list of employees against which to check the cards of the unions. On December 21, the day on which the TWUA submitted its cards to the Field Examiner, but before any report had been made as to the results of his check, the respondent compared with its pay- roll list certain cards presented to it by TWUA, recognized that organi- zation as the exclusive bargaining representative of its employees, and immediately agreed to all terms of a union-shop contract except wages. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 23, 1942, the respondent executed a written union-shop contract with TWUA. Thus, within a few days after the respondent had refused even to look at the cards offered by the Union, and after insisting that only by a Board election could the question of representation be resolved, the respondent entered into an agreement with TWUA upon the basis of a card check, with full knowledge of the Union's majority representation claim, and despite the fact that a majority of its em- ployees were even then out on a strike called by the Union. More- over, a comparison of the activities of Monez and Testa on behalf of TWUA, with their conduct prior to the advent of this organization in the plant, makes it apparent that the respondent was willing to deal only with TWUA and that it actively assisted that union to obtain members. Monez and Testa, after having dissuaded employees from joining the Union, instigated the movement of employees into TWUA at a time when that organization did not have a single signed appli- cation card. When the TWUA had secured a majority, the respondent hastily recognized it after a card check, thus granting to it the most powerful and valuable assistance possible. We find that the respondent, by the activities of Monez and Testa, hereinabove outlined, by its preferred treatment of TWUA in ac- cepting its cards as proof of majority while declining to accept sim- ilar proof from the Union, and by its recognition of and execution of a union-shop contract with TWUA under the circumstances set out above, aided, encouraged, and assisted TWUA, and that it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall, accord- ingly, order the respondent to cease and desist from recognizing TWUA as the exclusive representative of its employees unless and until it is certified as such by the National Labor Relations Board. However, since TWUA no longer exists in the respondent's plant, and since its contract with the respondent has been abrogated by the parties thereto, we shall not issue an affirmative order requiring with- drawal of recognition from TWUA. 3. We agree with the Trial Examiner's finding that the respondent has refused to bargain with the Union, but, we do not find, as he did, that such refusal first occurred on December 14, 1942. On that date, as the record discloses and as the Trial Examiner has found, the Union clearly represented a majority. While we consider suspicious the circumstances surrounding the asserted prior majority claim of TWUA, we cannot find from the record that the respondent's conten- tion as to TWUA's prior claim was made in bad faith. As we have previously held,' the respondent was under no obligation to recognize 2 Matter of Sherwin Williams Company, 37 N. L. R. B. 260. FINE ART NOVELTY CORPORATION 485 -either union, so long 'as it entertained a bona fide doubt as to which was the majority representative of its employees. Accordingly, we do not find a refusal to bargain on December 14, 1942, in the respondent's denial of recognition to the Union. Thereafter, between December 14 and 21, 1942, the respondent en- gaged in a course of conduct which, we have found, constitutes illegal assistance to TWUA. None of the cards submitted to the respondent by TWUA on December 21 had been signed prior to December 14, a fact which was apparent from the face of the cards which the respondent inspected; they were all signed during the period of the respondent's unlawful assistance to TWUA. Although TWUA, as a result of such illegal assistance on the part of the respondent, was able to secure the signatures of a majority of the employees, this does not mean that the Union lost its majority status. An employer may not destroy the majority status of a Union by unfair labor practices and then rely upon the loss of majority to justify his refusal to bargain with that Union.3 It is clear from the record, and we find, that the Union, which had requested recognition on December 14 and 18, still sought that recog- nition on December 21 and that it regarded its request as continuing. The respondent's extension of recognition to TWUA and its execution of a contract with that organization demonstrated a disregard by the respondent of its obligation under the Act and constituted a refusal to bargain with the Union on and after December 21, 1942 4 More- over, on April 3, 1943, after the withdrawal of TW UA from the plant and the abrogation of its contract, the Union again requested the respondent to bargain with it but the respondent refused on the ground that an election was' necessary to determine the bargaining representative. We find that, by extending recognition to TWUA on December 21, 1942, by entering into a contract with it on December 23, 1942, and by refusing the Union's request for recognition and bargaining negotiations on April 3, 1943, the respondent refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in an appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that by such refusal it interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Because he found that the respondent had ceased operating its business at the time of the hearing and that there was no likelihood 8 N. L. R B . v. Bradford Dyeing Association, 310 U. S 318 and N. L. R. B. v. Franks Bros. Company, 137 F. ( 2d) 989 (C. C. A. 1). * See Matter of Porcelain Steels, Inc., and International Association of Machinists, 46 N L R. B. 1235, enf'd N. L. It. B. v. Porcelain Steels, Inc., 138 F. (2d) 84 (C. C. A. 6). 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it would resume operations until after the war, the Trial Ex- aminer recommended that no order be issued requiring the respondent to bargain collectively with the Union. Since we have found that the respondent has refused to bargain with the Union, and since it seems likely, that it may again refuse if it resumes operations, we deem it ad- visable to enter against the respondent a cease and desist order and an order to bargain collectively with the Union in the event that the respondent or its agents, successors, or assigns has resumed, or does in the future resume operations. 4. We agree with the Trial Examiner's finding that the respond- ent's payment of a bonus on December 31, 1942, to the employees who had returned to work, but not to those who refused to, abandon the strike, constituted an unfair labor practice. We find that by this action the respondent interfered with, restrained, and coerced its employees in the exercise of their rights under the Act. However, we do not think it necessary, in order to effectuate the purposes of the Act, to order, as the Trial Examiner has recommended, that the employees who failed to receive the bonus be made whole in the amount they would have received had they not been on strike. We do not adopt the Trial Examiner's recommendations in this respect. 5. The Trial Examiner found that the respondent did not engage in unfair labor practices by threatening its employees with reprisals if they should become members of or assisted the Union, and recom- mended that the allegation of the complaint to this effect be dis- missed. The Trial Examiner also found, however, and we agree, that early in December 1942 the respondent's vice president, Hochman, asked Harold Mont if he was the instigator of the Union and if he was in a position to take a chance like that; that about the same time Foreman Zaum told several employees that if the Union came into the plant the cutters would have to work harder; and that, after the plant reopened during the strike, Foreman Bromberger told Wolinsky, a cutter, that if Wolinsky did not return to work. he would lose his job. We consider these statements ample evidence to support the above-mentioned allegation. Moreover, as pointed out heretofore, Testa told Safian and de Lucia that the girls who signed up with the Union would "get what was coming to them." We find that these statements were intended to, and did, convey to the employees a threat of economic reprisals if they engaged in activity on behalf of the Union, and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. FINE ART NOVELTY CORPORATION 487 ORDER Upon the basis of the foregoing findings of fact and the entire ,record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby, orders that the respondent, Fine Art Novelty Corporation, New York City, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Recognizing Textile Workers Union of America as the repre- sentative of any of its employees for the purpose of collective bargain- ing, unless and until that organization shall have been certified as such by the National Labor Relations Board; (b) Refusing to bargain collectively with Local 45-B, United Furniture Workers of America, C. I. 0., as the exclusive representa- tive of all its employees, exclusive of supervisory employees, foremen, executives, officers, clerical employees, and salesmen, in the event that the respondent or its agents, successors, or assigns has resumed, or does in the future resume, operations; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in, concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2.' Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Local 45-B, United Furniture Workers of America, C. I. 0., as the exclusive representa- tive of all its employees, exclusive of supervisory employees, foremen, executives, officers, clerical employees and salesmen, in respect to rates of pay, wages, hours of employment, or other conditions of em- ployment, in the event that the respondent, or its agents, successors, or assigns has resumed, or does in the future resume, operations; (b) Post immediately in conspicuous places throughout its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices td its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b) and (c) of this Order; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Second Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. GEIAxn D. REU,LY took no part in the consideration of the above Decision and Order. 488 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. Daniel Baker, for the Board. Rothstein cE Korzenilc, by Mr. Harold Korzenik, of New York City, for the respondent. Mr. Harry ll'e;nstock, of New York City, for the Union. STATEMENT OF THE CASE Upon a first amended charge filed May 27, 1943, by Local 45-B, United Furni- ture Workers of America, C. I. 0., herein called-the Union,' the National Labor Relations Board, herein called the Board. by its Regional Director for the Second Region (New York City), issued its complaint dated May 28, 1943, against Fine Art Novelty Corporation, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (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 notice of hearing were duly served upon the respondent and the Union. Concerning the unfair labor practices the complaint alleged in substance that the respondent : (1) on or about December 14, 18 and 23, 1942, and at all times since refused to bargain collectively with the Union which at all times since December 14, 1942, has been the exclusive representative of the respondent's employees, within a unit appropriate for collective bargaining ;'s (2) from the latter part of November through December 14, 1942, and thereafter disparaged, expresseed disapproval of and discouraged membership in the Union by (a) interrogating its employees concerning their membership in and activities in behalf of the Union; (b) urging and warning its employees to refrain from joining, or assisting the Union: (c) threatening its employees with reprisals if they became members of or aided the Union ; (3) from on or about December 15, 1942, and at other times assisted the Textile Workers Union of America by counseling, urging, encouraging and soliciting its employees to join that organi- zation; (4) after December 15, 1942, and before January 11, 1943, during a strike called by the Union, urged at least one striking employee, to return to work and abandon the strike, which strike had been called and prolonged as a result of the respondent's unfair labor practice; (5) on or about December 23, 1942, entered into a collective bargaining agreement with the TWUA although the TWUA had been assisted by the unfair labor practices of the respondent above described, and was not the representative of the employees in the col- lective bargaining unit covered by such agreement at the time of its execution,' and on March 26, 1943, the TWUA notified the respondent in writing that this contract was null and void and that the TWUA relinquished all claims and interests therein; (6) in April 1943, threatened its employees that it would permanently shut down its plant in preference to executing a contract with the Union; and (7) by the foregoing acts has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 1 Occasionally the Union is also referred to as 45 -B in order to distinguish it from Textile Workers Union of America , affiliated with the C . I. 0, hereafter referred to as the T W UA. 21 The unit alleged to be appropriate consists of all employees "exclusive of supervisory employees, foremen , executives , officers , clerical employees, and salesmen " 4 As later developed at the hearing, the collective bargaining unit described in the above agreement , was substantially the same as that alleged in the complaint herein. FINE ART NOVELTY CORPORATION 489 The respondent filed its answer dated June 7, 1943, denying all allegations of unfair labor practices. It admitted that certain of its employees ceased work and went on strike as alleged in the complaint, and alleged that the strike was called by the Union. As affirmative defenses, the answer alleged: (1) that at all times the respondent offered and now offers to consent to an election to determine the proper collective bargaining agency for the respondent's em- ployees, but that the Union has refused to consent to such an election; (2) that prior to December 14, 1942, the Congress of Industrial Organizations of which the Union is an integral part, by its duly constituted officers gave a no strike pledge to the Government of the United States for the duration of the war ; that at all times mentioned in the complaint the respondent was engaged on war contracts for the United States Army of which fact the Union had knowledge; that despite the foregoing pledge, the Union called a strike and attempted to prevent work being clone upon the respondent's premises, including work under- taken for the United States Army. Pursuant to notice, a hearing was held from June 17 through June 28, 1943, at New York City, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent and the Union were rep- resented by counsel and participated,, in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, the re- spondent's counsel took the position that the TWUA was a necessary party and should have been served with a notice of the hearing. The undersigned ruled that from the issues as presented in the pleadings' the TWUA was riot a neces- sary party and under the Board's rules and regulations it was not necessary to serve that organization with notice of hearing' At the beginning of the hearing Board's counsel moved to amend the complaint so as to clarify its wording. There was no objection and the motion was granted. At this time Board's counsel moved to strike the two affirmative defenses alleged in the answer. Respondent objected to the motion and the undersigned reserved decision. The respondent then moved to amend the first affirmative defense in the answer so as to allege that the respondent offered in good faith, to consent to an election or any other form of certification by the National Labor Relations Board. There was no objection and the motion was granted. The undersigned now denies the motion to strike the first affirmative defense from the answer. The allegations in the second affirmative defense of the answer are hereby stricken, except that portion thereof which alleges that the respondent was and is engaged in war work and that the Union was aware of that fact when it calledythe strike. At the conclusion of the Board's main case, the respondent moved to strike testimony previously received over its objection on the ground that such testimony was not connected up with or binding on it. The motion was denied. Respondent's counsel then moved to dismiss the complaint, on the ground that there was no "credible or substantial" proof to sustain the allega- 0 The respondent in its answer did not deny or make any reference to the allegations in the complaint that the respondent executed a contract with the TWUA and that this con- tract was later , rescinded by the TWUA. 6 Section 51 of Article II of the Board 's Rules and Regulations states in part ; "when- ever any labor organization , not the subject of Section 8 (2) allegations in the complaint, is a party to any contract with the respondent the legality of which is put in issue by any allegation of the complaint , such labor organization shall be made a party to the proceed- ings." It is clear from the pleadings , and as later developed at the hearing, that the re- spondent's contract with the TWUA ii as not put In issue by any allegation in the com- plaint, but on the contrary the complaint specifically alleged that the contract had been repudiated by the TWUA prior to the issuing of the complaint. i 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lions of unfair labor practices therein. The motion was denied. Respondent then moved to dismiss the specific allegations of unfair labor practices. The motion was denied. At the conclusion of the hearing, motions were made, to conform the pleadings to the proof in formal matters. There was no objection and the motions were granted. At that time the respondent moved to dismiss the entire complaint, and separately to dismiss the 8 (5) allegations in the com- plaint. Rulings were reserved. The motions are hereby denied except as -will hereafter appear. At the conclusion of the hearing counsel for the Board and the respondent presented oral argument. The parties were advised of their right to file briefs with the undersigned after the close of the hearing. No'briefs have been filed. Upon the record thus made and from his observation of the witnesses the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Fine Art Novelty Corporation is a New York corporation with its office and principal place of business in New York City. It is engaged in manufacturing bedspreads, draperies, curtains, and allied products. It uses piece goods, trim- ming, thread, and other materials. During the past year approximately 90 percent of these materials valued at over $500,000 were shipped to the respondent's plant from points outside the State of New York. During the same period, more than 66 percent of the finished products amounting in value to more than $500,000 was shipped to points outside the State of New York. Fifty percent of its production is devoted to the manufacture of mattress covers for the United States Army! IT. THE ORGANIZATION INVOLVED Local 45-B, United Furniture Workers of America, C. I. 0., is a labor organiza- tion admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint and coercion 1. Background The respondent is a small concern employing about 136 production and main- tenance employees, many of them women. Its plant is located on one eased floor of a factory building in New York City. The floor is divided into three units or lofts and a space,is also provided for offices. ' One of the two larger lofts is used to cut mattress covers and to cut and manufacture slip covers. It is referred to variously in the record as the slip cover department and the mattress cover department. In the second larger loft, usually referred to as the bedspread department, bedspreads, draperies, and mattress covers are sewed. The third and smallest loft is used for cutting bedspreads and draperies. Because of the nature of the work in this third loft it is closely associated in the record with the bedspread department. The employees consist of four or five cutters divided between the two departments. In December 1942, there were 37 sewing machine operators and 7 floor girls in the slip cover department and 67 operators and 16 floor girls in the bedspread department. 4 This commerce finding is based on a stipulation of the parties entered into during the course of the hearing. 1 FINE ART NOVELTY CORPORATION 491 Prior to the year 1942, so far as the record discloses , there was no union organi- zation in the plant, although the Textile Workers Union of America, made an unsuccessful effort in 1941 to organize the employees .' 2. Organization of the Union In the late summer of 1942, the Union started an organizing campaign among the respondent's employees B Clarina Michelson, then an organizer but since Jan- uary, 1943, business agent for the Union, assisted by Harold Klein and Jean Wanda, also Union representatives, visited some of the employees' homes and held meetings of small groups in halls and at the Union headquarters. Union literature and cards were distributed in front of the plant several times a week throughout the fall. The union representatives were assisted in their campaign for members by a group of 8 or 10 employees, including Betty Safian, Mary Ludmar, Minnie Kaplan, and others. As a result of these efforts a substantial number of the respondent's employees joined the Union. Ort December 1, 1942, the Union held its first open meeting which was advertised by circulars distributed in front of the plant. 3. Anti-union statements and activities up to December 1 The respondent was aware of these organizational activities. There is un- Contradicted evidence herein credited that Max Zaum, who in addition to being foreman of the bedspread department was also in charge of all machinery in the plant, in October told Minnie Kaplan when she asked for a raise, "Don't you know there is a law. I can't give any raises now." "Go ask your girl friend, the Union lady. She will help you." One leaflet distributed by the Union the day before Thanksgiving, commented on the fact that the employees of the respondent were not paid for Thanksgiving and other holidays, and urged the employees who had not already done so, to join the Union and ultimately secure these benefits which it stated union mem- bers in other plants were already enjoying. During the lunch hour that day Zaum, carrying one of these leaflets, approached a group of employees made up of Harold Wolinsky, Fred Laserson, Irving Goodman; Betty Satian and Rose Schwartz and said, "The Union is pretty smart in trying to organize the place." Wolinsky replied that the Union was as smart trying to organize, "as you are trying tp dis-organize the place." Zaum then said, "What do you people need a union for, especially you cutters.s30 He then stated, in effect, that if the Union came into the plant, the cutters would not benefit to any extent and would have to work harder. Dora Rubin joined the Union on November 25. A few days later Zaum asked her if she had signed a union card. Rose Schwartz attended the De- cember 1 Union meeting and signed an application card. The next day Zaum asked Schwartz if she had attended the meeting. On receiving an affirmative re- sponse, Zaum stated that he was "very much surprised" and inquired if Schwartz had "signed up." Schwartz denied that she had joined the Union. She then asked Zuam if lie was anirry with her. Zaum replied that he was not and added "it 8 At that time the TWUA secured as members Theresa "Terry" Rocco, Mary Milazzo, and Elmira Lindo, who were employed by the respondent at the time of the bearing. 8 Abraham Flockman, vice president , secretary and general manager of the respondent, testified that in August and September 1942, Max Zaum, foreman of the two bedspread departments, reported to him that a TWUA representative had told Zaum that the TWUA had "a few members in the shop " Zaum, although available, was not called as a witness. This hearsay testimony is therefore disregarded. 11 Wolinsky and Goodman were cutters. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doesn't make any difference if the girls want to sign up, you can not stop. them." 11 About the middle of November 1942, Irving Boxenbaum, the respondent's president, asked Shipping Clerk Fred Laserson during working hours to ascer- tain from Mary Ludmar if she was the instigator of the Union. Laserson demurred at first, but Boxenbaum insisted, whereupon , Laserson made the inquiry of Ludmar and upon receiving her response that she was not the insti- gator of the Union, so reported to Boxenbaum.n A number of employees in the bedspread department' testified that during this organizational period and up to and including a day or two after the December 1 meeting, Clothilde Monez, characterized by some of these- em- ployees as their "forelady," questioned them about their Union membership and attendance at Union meetings, and disparaged and endeavoured to discourage the employees' interest in the union. Monez denied this testimony. As here- after found li while Monez exercised some minor supervisory functions, she was not sufficiently identified with management as to make the respondent respon- sible for her activities. It is therefore unnecessary to resolve these conflicts as to Monez's activities and statements. 4. December 4 conference ; early closing on December 7; the Union meeting On December 4, the Union representatives, Mrs. Michelson and Harold Klein, called at the office of Abraham Hockman, the respondent's vice president, secre- tary and general manager, and complained that the respondent's supervisors were attempting to discourage the employees from joining the Union15 Hock- man replied that he had heard of no disparaging remarks, but stated that he would investigate and if found true, would ask the supervisors to desist from such practices.16 At the December 1 meeting of the Union heretofore referred to, plans for a meeting on December 7 were discussed. On December 4 a leaflet was dis- tributed in front of the respondent's plant announcing that the representatives of the Union had met with the respondent on December 4, and that there would be an important meeting of the Union in a nearby hotel on December 7, "right after work." The regular quitting time for the employees 'was 5: 15 p. in. and the above Union meeting was planned for 5:30 p. in. However, at 4 p. in, on December 7, without previous notice to the employees, the power in • 11 The above findings as to Zaum's activities are based on the uncontradicted testimony of Kaplan, Harold Wolinsky, Safian, Rubin, and Schwartz. Zaum did not testify. He was employed by the respondent at the time of the hearing and there was no showing of his unavailability. 12 Boxenbaum did not testify and there was no showing of his unavailability. The above testimony of Laserson was uncontradicted. 13 The employees so testifying were Leopoldina Klein, Rose Schwartz, Bella Liebman, Florence Hale and Rose Goldschmidt. 14 Subdivision III-A-6, infra. ii Michelson testified in this respect that Klein told Hockman that the employees were complaining because "foreladies " Monez of the bedspread department and Filomina ("Fan- nie") Testa of the slip cover department were discouraging union membership . There Is no evidence of any attempt to discourage union memberabip up to this period of time by Testa Klein, who was in the Aimy, did not testify. It is therefore found, as testified to by Hockman, that the Union representatives complained that there was interference by supervisors of the respondent, but that they did not specify the names of the supervisors. ','In this connection Hockman's testimony is credited that lie assumed the complaints were against Max Zaum, foieman of the bedspread department, and Solomon Bromberger, foreman of the slip cover department, who he claimed, were the only supervisors in the respondent's employ, and that immediately after the above conference he warned both Zaum and Bromberger not to interfere with.Union activity. FINE ART NOVELTY CORPORATION 493 the slip cover department was shut off by Fannie Testa who told the employees therein that there was no more work that day. As the employees left the building at 4 o'clock organizers for the TWUA were at the exit of the building distributing leaflets for that organization. As a result of this early closing without warning or notice the Union officials precipitously advanced their meeting hour to 4: 30 p. in. in order to reach the slip cover employees. The Union contends that the early closing of this department without prior notice was not justified as there was plenty of work and that its purpose was to dis- courage attendance at the union meeting and to assist the TWUA. The respond- ent's records show that it was not unusual for the slip cover department to close down about an hour earlier than the rest of the plant in the afternoons, and that for the rest of the week following Monday December 7 that depart- ment closed early each afternoon. Hockman testified that the early shut-down the week beginning December 7 was because of a shortage of materials and denied that the TWUA officials had any prior knowledge, so far as he knew, of the contemplated early shutdown on December 7 or that he knew their representatives were at the exits of the plant. Although the failure of the respondent to give the employees in the department notice of the early closing on December 7, raises some suspicion as to the employer's motive, it is found that the early shut-down was for business reasons and not an effort to dis- courage attendance at the Union meeting. It is further found that the respond- ent had no knowledge of the presence of the TWUA organizers outside the plant on that afternoon. 5. December 8 conference : events to December 12 As above detailed the union meeting on December 7 convened an hour earlier than originally planned. At the meeting benefits to be derived from organizing were discussed as were certain alleged unfair labor practices of the respondent, including the early shut-down of the slip cover department on December 7. A proposed contract that had been prepared as a result ,,)f a discussion at the December 1 meeting was read and a committee of about 12 employees was elected for the purpose of calling on Hockman the next day to request that be negotiate a contract with the Union and to protest against the unfair labor practices. The next day, December 8, at noon, Mrs. Michelson, Harold Klein, and Jean Wanda, accompanied by this committee of union employees met Hockman in his office. Klein acted as spokesman and told Hockman that the Union would like to arrange to meet the next day, December 9 to negotiate a contract and that the committee present had been elected for that -purpose. Hockman agreed to meet with the committee but stated that it could not be the next day as his associate, Irving Boxenbaum, 17 was ill and his lawyer, Harold ,orzenik was out of the city. December 10 was then set tentatively for this conference and Hockman agreed to notify the committee of the exact hour or the proposed contract. During the meeting, Klein also told Hockman that the unfair labor practices of the respondent were continuing and in- timated that the slip cover department had been closed down early the day before in order to interfere with the activities of the Union and to assist.TWUA. Hockman told the committees that the early stoppage of the department was his business and was not in his opinion an unfair labor practice.18 17 Irving Boxenbaum was president of the respondent. 1B The above findings as to the December 8 conference are based on a reconciliation of the testimony of Michelson and Hockman. Although the latter made no mention in his testimony of any discussion at this meeting of the unfair labor practices and the closing incident, he did not deny that such discussion took place. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next day, December 9 at noon, Mrs Michelson was in the plant and asked Hockman if he could let her know when he would meet with the committee. Hockman replied that he could not tell exactly but it was only a matter of a few days, as soon as he could hear from his attorney. That afternoon Hockman talked to his attorney relative to the time for this conference but the latter was about to leave the city and was unable to set the time. Korsenik, however, told Hockman that he would wire him in a day or two relative to the Union conference. Hockman did not meet with the Union representatives on December 10 nor did he advise them of the arrangement he bad with Korzenik On De- cember 10 Alexander E. Racolin, attorney for the Union mailed to the respondent a letter protesting against interference in the Union's activities by, "certain supervisory employees," in the face of a promise to stop them. In the meanwhile on December 9, the Union prepared and distributed a pamphlet advising the employees that the committee had met the day before with Hockman and that a conference had been arranged for Thursday De- icember 10 to discuss the proposed contract. On December 11, the Union pre- pared and distributed another leaflet in front of the plant calling a union meeting for that night and stating that Hockman had not met with the com- mittee the previous day as he had agreed. At the meeting that night the failure of Hockman to set a date for a conference was discussed, as were the alleged unfair labor practices of the respondent. It was decided that something drastic should be done in order to impress the respondent with the Union's representation in the plant. A strategy committee was thereupon elected with instructions to meet at the plant before working hours on Monday, December 14, which was the next regular working day, and to request all employees to attend an important union meeting that morning near the plant, instead of reporting for work, the idea, being, as expressed by Mrs. Michelson, that if they could get a majority of the employees to go to the meeting instead of to work, Hockman would be impressed and would negotiate a'contract. Early Monday morning, December 14, the strategy committee 10 accompanied by Mrs. Michelson met at the plant before working hours. They displayed two large signs advertising the meeting to the workers as they appeared and per- sonally exhorted them to attend, the meeting scheduled for 8: 30 that morning instead of reporting for work. As a result only about 15 or 20 employees reported for work on the morning of December 14. Most of those who did not go to work went to the union meeting which continued through most of the day. During the course of the day a number of new union members were obtained. On the morning of the 14th the union meeting selected a new committee to wait on Hockman. There is testimony that during this period Fannie Testa, described by some of the witnesses as a "forelady" in the slip cover department, also attempted to discourage the employees in that department from joining the Union R0 Testa denied that she ever spoke to anyone about the Union. Testa, like Monez here- tofore referred to, exercised some minor supervisory functions, but as hereafter found 21 they were not such as to render the respondent responsible for her activi- ties. The conflict in the testimony relative to Testa's activities is therefore not resolved. 19 The committee consisted of Harold Wolinsky, Betty Safian, Lucy Sporaga, Rose Devoe, Adele Bund, Christine Tolbert, Mary Ludmar, Minnie Kaplan, Thelma Groat and several others Rose De Ninno , Harold Monte, and Betty Sagan so testified. 11 Subdivision III-A-6, infra. - , FINE ART NOVELTY CORPORATION 495 According to Harold W. Monte, one of the respondent's cutters, Hockman in early December came to him at work and inquired if he was the instigator of the Union and if he was in a position to take a chance like that. Monte denied that he had started the Union in the plant and told Hockman that he would not give any information about any of the employees in the Union. Hockman then inquired about Monte and his wife and how they were getting along. In re- sponse to this inquiry Monte indicated that he was having financial difficulties due to his low salary and asked Hockman to sell him a bedspread on time.' Hockman then gave Monte one of his best bedspreads saying that he felt hd owed him an "additional wedding present." Hockman admitted giving Monte a bedspread but fixed the time in September or October, "before we closed our samples." He denied that he had asked Monte if he was the instigator of the Union. Hockman did not explain the circumstances of giving the bedspread, except to state that he had, on occasion, given other employees bedspreads when requests had been made. In view of the general antagonistic attitude toward the Union shown by the respondent, as hereafter appears, it is found that Hock- man made the statements attributed to him by Monte. 6. Employee status of Monez and Testa Inasmuch as the Board contends and the respondent denies that Monez and Testa are supervisors, it is advisable that the status of these two employees now be determined. Monez has been employed by the respondent for about 9 years in the bedspread department under foreman Zaum. In this department the sewing machines were on an assembly line, with each operator performing certain sewing functions as the material went from one machine to the next. The floor girls checked the work performed at each machine and finally the completed article. Up to the year 1941 Monez operated one of the machines. At that time, because of her familiarity with all the machines and the work in the department she was selected to assist Zaum In providing the operators with the proper pieces of material that had been previously cut by the cutters. Under the new arrange- ment when the sewing processes were completed and checked Monez piled the finished articles on appropriate shelves. Under instructions from Zaum she notified all the employees in the department when there was no work or over- time work. She serviced the machines. In the event of a major breakdown of a machine Zaum was called to put the machine in order, either by the par- ticular operator or by Monez. She instructed new girls if she had the time, but other experienced operators also instructed new girls in the work. A num- ber of the operators sand Cutter Harold W. Monte testified that Monez was considered a supervisor or forelady. Florence Hale and Geoanna Jenkins each testified that when she desired to take off from her work she secured the per- mission of Monez. Anna Jenkins testified that on one occasion she took time off without obtaining permission and was reprimanded by Monez. Monte and A. Jenkins testified Monez criticized the employees' work and conduct. All em- ployees in the department, except Zaum, were paid on an hourly basis. The weekly pay ranged from $17 to $20. Monez received $23 a week. However, Dorothy Pascal, an operator in the respondent's employ about 14 years, received a Hockman was very friendly with Monte and at the time of the latter's marriage about a year previous to this talk on behalf of the respondent, gave him a $25 wedding present. 29 Bella Liebman, Rose Goldschmidt , Rose Schwartz , Anna and Geoanna Jenkins, Flor- ence Hale, Dorothy and Mary Thomas and Minnie Kaplan. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $26 a week. Another operator, Cecelia Barsky, received $24 although she had been with the respondent only about 2 years. However, N1onez was paid for vacations and holidays and received a full day's pay whether she worked the full 8 hours or not. None of these benefits were enjoyed by the other employees in the department.' Although Monez denied that she was a forelady or supervisor she admitted that on occasion the employees came to her for instructions. She denied that she granted the employees time off or discriminated or criticized them. Under all the circumstances the denials of Monez that she ever granted time off are not credited and it is found that she did grant the employees time off from their work, criticized the work and disciplined the employees, and was regarded by the employees as identified with management. So far as the record discloses Monez was in no way responsible for production in the department. She had no authority to hire or promote or recommend such action. As previously found, her foreman, Zaum, did not testify. Monez testified she had no authority to fire or to recommend such action. Hockman corroborated her in this respect. The only evidence to the contrary is the following incident: on one occasion, about May 1943, a colored floor girl named Frazier and a white girl operator named Rindler got into an argument about some work while Monez was present. Frazier slapped Rindler. During the altercation Hockman came into the department. Two colored girl operators, Geoanna Jenkins and Dorothy, Thomas testified as to this incident. Jenkins testified that she was sitting next to Frazier and after the slapping incident Zaum took Rindler to the rear of the department and Monez in the presence of Hockman went over to Frazier and said, "Get out ; we don't have that in here, don't have any girls slapping girls,"; that Zaum then returned, got Frazier her check and the latter left. Jenkins testified that at the time of the discharge Hockman and Monez were about 5 feet apart and about 30 feet from where she was working near Frazier ; that she was watching the "whole thing" and "didn't see" Hockman say anything at the time of the dis- charge. Thomas testified that she was directly across from Frazier; that Monez in Hockman's presence came over and told Frazier to "get out," and repeated it when Frazier was a little slow in leaving ; that there was considerable loud talking at the time in the department but she could not distinguish what was said and that she did not know whether Hockman talked to Monez at the time the latter asked Frazier to leave. Thomas in her testimony made no mention of Zaum's presence at the time during the incident. Monez testified that Rindler shrieked after she had been struck and Hockman came into the department ; that Monez then walked over to Frazier and said, "Why did you hit her?" and Frazier replied "I hit her because she told me to shut up," whereupon Monez told Frazier, "You had no business hitting her. You had a right to tell her to shut up, but not to hit her ;" that at that time Hockman said "Get her out of here. She is fired," whereupon Monez told Frazier to "go on" and Frazier went to the office. Monez in her testimony made no mention of the presence of Zaum. Hockman did not testify as to the incident. Lacking positive testimony that Hockman did not speak to Monez at the time of the discharge, Monez's explanation is accepted as the more reasonable, and it is found that Hockman ordered Frazier's discharge. It is further found that Monez had no independent authority to discharge or effectually recommend discharges. Testa occupied a similar position, under Foreman Bromberger in the slip cover department, as Monez did in the bedspread department. She distributed the work 24 As will hereafter appear , the respondent on December 31, 1942, paid all the employees then working a small cash bonus ranging from $5 to $15, depending on the type of work performed during the preceding 12 months. Monez received a bonus of $22. Pearl Gold- berg, an operator, received $18. • TINE ART NOVELTY CORPORATION 497 to the operators, took it away and when completed told the operators about short,working periods and about overtime. She usually turned the power on and off at starting and quitting time when the gong sounded. She broke in new girls and the operators looked to her for instructions particularly during Brom- berger's absence. Numerous employees 26 in the department testified variously that Testa-was their forelady, criticized their work and conduct, notified them of special working hours and gave them permission to take time off. For a while in the summer of 1942, Testa was absent from the plant. Her work was taken over by operator Dottie Chernoff. On Testa's return to work Chernoff informed Betty Safian that "her old forelady" was coming back. Testa told cutter Harold Wolinsky who worked in both the slip cover and bedspreild departments, on two occasions, that she was a forelady. On another occasion, Wolinsky heard her say that she was "in charge" of the department. Although Testa denied that she criticized the work and conduct of the operators or made the statements attributed to her by Wolinsky and Saflan, her denials are not credited under the circumstances, and it is found that Monez criticized the work and conduct of the operators and represented herself to be in charge of the operators. Ac- cording to Betty Safian, on one occasion a girl, whom Safian identified only as May, objected to taking orders from Testa, whereupon the latter reported the matter to foreman Bromberger and the latter told May, in Safian's presence, that she had to take orders from Testa the same as he had to take orders from "the boss " Bromberger denied making this statement. It is clear that Testa did have some limited authority. It is therefore found that Bromberger told May that she was expected to take order from Testa. Testa receives $28 a week, is paid for holidays and vacations and for a full day, regardless of whether she puts in 8 hours. The week of December 31, 1942, she received a cash bonus of $25. The most any one else in the department received was $15. The operators received $18 to $22 a week depending on length of service but none of the other benefits above described26 Testa came to the respondent 4 years ago as an operator. She has held her present position approximately 2 years, with the exception of 3 months in the summer of 1942 when she was away. She is not responsible for production in her department nor can she hire or discharge or effectively recommend such action. Neither Monez nor Testa are responsible for the production in their respective departments. They have no authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of the employees or effectively to recom- mend such action. As hereinafter found 2' they are properly within the appro- priate bargaining unit of production and maintenance employees. It is therefore found that the employee status of both Monez and Testa is such that the re- spondent is not responsible for their activities28 B. The refusal to bargain; other interference, restraint and coercion 1. The appropriate unit The complaint alleges that all employes of the respondent exclusive of "super- visory employees, foremen, executives, officers, clerical employees and salesmen" constitute a unit appropriate for the purposes of collective bargaining At the hearing it was stipulated that the above unit was appropriate, but the respondent emphasized that it regarded the terms "supervisory employees" and "foremen" 25 Doia Rubin , Celia Maskowitz, Bessie Jenkins, Rose De Ninno, Marie Leon, Sidney Taylor, Betty Safian and Comather Long 3B The floor girls receive from $16 to $20 a week. Subdivision III B , infra. Ts Cincinnati Chemical Works, etc ., Dec. July 2, 1943, 51 N. L. R. B. 461. 565900-44-vol. 54-33 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as interchangeable and not separate categories .29 This is essentially the same unit as was covered by the contract entered into December 23, 1942, by the re- spondent and the TWUA, hereinafter discussed. It is therefore found that at all times material herein all employee:; of the respondent exclusive of supervisory employees, foremen, executives, officers, clerical employees and salesmen constituted and they now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment and that said unit insures to the employees of the respondent the full benefit of their rights to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Efforts to obtain recognition and to bargain During the course of the union meeting on the morning of December 14 a committee of employees were selected to call upon Hockman This committee of five or six striki'rig employees accompanied by Michelson and Klein conferred with Hockman in the plant at noon that day. Klein acting as spokesman told Hockman that the committee represented the employees and that they wanted to negotiate a contract without delay ; that since a great majority of the employees were at the union meeting and not at work, it was clear that the Union represented a majority of the employees Hockman replied that his associate, Irving Boxen- baum, was still away but that he had been advised that the respondent's attorney Korzenik was in town Hockman then phoned Korzenik in the presence of the committee and an appointment was made with the committee for 4 p. in. that day at the attorney's office. At 4 p. in. Michelson and Klein accompanied by the committee augmented by a few additional employees met with Hockman and Korzenik at the latter's office. Klein told Korzenik that the respondent's employees wanted to negotiate a con- tract without delay and called attention to the large number who had partici- pated in the walk out that day as substantial proof of majority representation. He also stated that the committee had union application cards of a majority of the employees. Korzenik replied that in his judgment the Union was very irresponsible in causing the work stoppage, after the national officers of their union and other national organizations had made a no-strike pledge to the President of the United States, particularly as the respondent was then engaged partly in war work. Klein replied that they could not wait any longer as the workers were impatient, and mentioned the previous complaints to Hockman about the interference of supervisors He further stated that the unfair labor practices were continuing, and cited as an example the 4 o'clock closing of the slip cover department, the presence downstairs at the exits of oiganiz' rs for the TWUA and the interference with the scheduled meeting of the Union on Decem- ber 7 Korzenik then asked how inany membership cards the Union had and Klein produced 78 cards Several additional cards were handed to Klein by other members of the committee Korzenik stated that the respondent had been approached by the TWUA who also claimed to represent the employees 30 and 29 As heretofore appears, the respondent's position is that supervisory employees included only the two foremen The Board contended that Monez and Testa were "foreladies" and "supervisors." As heretofore found , neither Testa nor Monez are supervisors for whose acts the respondent is accountable , and both might properly be included in a unit consisting of the production and maintenance employees , under the Board's decisions 30 Hockman so testified Michelson, Wolinsky and Safian all testified that the only men- tion of the TWUA at this meeting was in connection with the statement by Klein about the organizers of that union being present at tbe,exits of the plant on December 7 Hock- man further testified that on the morning of December 9, Sam Baron, lepiesontative of FINE ART NOVELTY CORPORATION 499 that in order to settle the dispute the Board would have to investigate the matter and certify which union had a majority after an election. In the meanwhile he suggested that the striking employees return to work . Klein refused to accept the suggestion , stating that because of the respondent's unfair labor practices, which were continuing , such an election would necessarily be unfair to the Union Klein then proffered approximately 80 union cards to Korzenik with the sugges- tion that he check the names against the respondent 's pay roll. Korzenik re- fused the offer stating that he did not think the cards adequate proof under the circumstances . Hockman then suggested that the employees engaged on govern- inent contracts return to work. Klein agreed to let Hockman know the next clay about this alternative proposal, but did not do so." The meeting then broke up. It is found that on December 14, the respondent refused to accept the Union's card showing as proof of majority on the stated ground that the TWUA at that time was also claiming a majority. 3. The strike ; TWUA activities On December 15, the Union meeting reconvened at 8: 30 in the morning.32 The committee reported the results of its conference at Korzenik's office the day before and the refusal of the respondent to recognize the Union, whereupon the meeting voted unanimously to strike, effective immediately Three pickets were placed at each of the exits to the plant and a committee consisting of Michelson and Wolinsky and one or two others waited upon Hockman at noon and informed him that the plant was on strike. Shortly thereafter, under Hockman's instructions, the plant closed down because of the strike. On December 15 the Union filed charges at the Board's Regional Office, alleging a violation by the respondent of Section 8 (1) and (5) of the Act. After the plant closed down on December 15, at about noon the 15 or 20 employees who had worked up to that time including Monez and Testa and headed by Dorothy Pascal, one of the old TWUA members heretofore referred to, adjourned to the TWUA headquarters and most of them signed applications for membership in that organization at that time. the TWUA, telephoned Hockman that the TWUA represented the employees and asked for a conference ; that he told Baron that his associate was sick and he did not know whether he could reach the respondent's attorney He admitted that he said nothing to Mrs Michelson at noon on the 9th about the TWUA claim . Korzenik did not testify , stating in the record that as he was appearing as attorney he did not think he should do so. As will later appear Baron wrote the respondent on December 15 asserting the TWUA repre- sented the employees and asking for a meeting to negotiate a contract . Baron said nothing in this letter about a previous talk with Hockman. However on receipt of a letter from Korzemk dated December 16 acknowledging Baron's previous letter and stating that the issue of representation would have to be "resolved" as 45B also claimed to repre- sent the employees Baron wrote Korzenik on December 17, asserting that on December 9 be had telephoned Hockman claiming that TWUA represented the employees and requested a conference ; that Hockman agreed to call hum but did not . Although the matter is not tree from doubt in the light of Hockman's failure to mention the TWUA claim to Michelson on the 9th , or on the morning of the 14th and Korzenik's failure to mike any mention of any previous claim of TWUA when he acknowledged Baron 's December 15 letter , never- theless, in view of the corroboration of Hockman by the Baron letter of the 17th , at least to the extent that the TWUA had voiced a claim of representation to the respondent, prior to December 14, Hock-man's testimony that the Union was advised of the TWUA claim on December 14 is accepted 81 Although no mention was made of this alternative proposal in the testimony of the Board' s witnesses , this testimony of Hockman was not denied and is therefore credited 32 The December 14 meeting adjourned in the afternoon without waiting for a report fioin the conference committee Few, if any , of the employees who had walked out on Monday reported for work Tuesday morning , December 15. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By letter dated December 15, 1942, Sam Baron, assistant general manager of the TWUA wrote the respondent as follows : GENTLEMEN: Please be advised that the Textile Workers Union of America represents your employees for the purpose of collective bargaining, and requests that negotiations be undertaken for the purpose of negotiating a collective-bar- gaining agreement. On December 16, Korzenik answered this letter as follows : DEAR SIR : We have your letter of December 15th advising our client, Fine Art Novelty Corp, that your union represents its employees, for the purpose of collective bargaining. We regret that we cannot enter into negotiations with you at this point because we have no basis for knowing the extent of your representation. As you probably are aware, our client is even now being subjected to a strike called by another Union claiming likewise to represent its employees. We must ask that this issue of representation be- resolved before we can undertake a deal with you or with any other union. On Decemer 17, by letter, Baron replied to Korzenik's letter and stated that the TWUA had been conducting an organizational campaign for several months and represented a majority of the respondent's employees ; that he had tele- phoned Hockman on December 9 to the effect that TWUA represented a major- ity and requested a conference; that Hockman agreed to phone him ; that he waited until December 15 for a reply, but received none ; that he was then advised that 45-B had called a strike and had "forced the majority of the workers whom we represented to cease working ;" and that he had written the respondent on December 15 "renewing" his demand. 4. December 18 conference ; the arrangement for a card check On December 18 at 3 o'clock in the afternoon a conference of parties involved called by Victor A. Pascal, the Board's Field Examiner, convened at the Board's regional office in New York City. The Union was represented by Alexander Facolin, its then attorney, Harold Klein, Mrs. Michelson, Jean Wanda, or- ganizers, and a number of the employees including Harold Wolinsky; Hockman and Korzenik represented the respondent. Mr. Lipsig, an attorney, represented the TWUA. Racolin objected to the presence of Lipsig but Pascal stated that Lipsig was there at his invitation. After a statement by Klein rehashing the two previous conferences with Hockman by" the Union committee and the offer he had made to Korzenik on December 14 to submit the union cards for a check, Racolin offered again to prove the union majority by a check of its cards against the respondent's pay roll. Korzenik objected to this procedure on the ground that such a card check would be insufficient proof of majority, and stated that as there were two competing unions, the proper -procedure was to have an election to which the respondent would consent. At this point the union representatives retired and after conferring among themselves, Racolin returned and announced that the Union would consent to such an election providing it was held imme- diately. Lipsig on behalf of the TWUA refused to agree to either a card check or an election. Pascal then suggested that he be given a pay roll of the re- spondent and the cards of both unions for the purpose pf a cheek by him to ascer- t FINE ART NOVELTY CORPORATION 501 tain which of the two unions had a majority. This suggestion was also opposed by Lipsig. Without reaching any decision, the meeting adjourned.33 Although as stated above, no agreement was reached by the parties on December 18, Koizenik did provide Pascal with a list of the respondent's employees up to the time of the strike. The record is not entirely clear, but it appears that at that time, or shortly thereafter, Pascal was also given the union application cards. In any event Pascal had the list and the union cards in his possession on December 21, when at about 3 o'clock in the afternoon Baron and a 141r. Cresanti, representatives of the greater New York Joint Board of the TWUA called upon him, accompanied by a committee of the respondent's employees. They exhibited to Pascal a group of 74 TWUA application cards with signatures attached thereto, and also another group of cards which were represented to be copies of the original cards. In the presence of the committee Pascal com- pared the names on the duplicates with the apparently genuine signatures on the originals. He satisfied himself they were copies. Although requested by Pascal, the TWUA representatives refused to leave the original cards with him, stating that they had an appointment with Korzenik that afternoon and desired to bring the original cards to the latter's office and submit them to Korzenik.4 5. Representation by 45-B of a majority in the appropriate unit The number of employees exclusive of supervisors at the time of the walk-out on December 14 was 137. A count of the application cards received in evidence from the Union show that on December 14, 1942, the Union had 84 members among the respondent's employees. In addition there is evidence undisputed and credited that three employees signed cards on or about December 7, and these cards were included in the group presented to Pascal on December 18, but were mislaid and lost . On December 15 another card was signed and another one on December 17. Although only approximately 80 of these cards were proffered to the respondent on December 14, the number submitted still represented a majority in the Union. At that time the respondent through its attorney defi- nitely refused to examine the cards and stated that it did not consider cards as sufficient proof of membership in view of the representation claim of TWUA. On December 18 it took the same position although all the cards herein referred to were proffered . In this connection it is noted also that on December 14 the Union had given proof to the respondent of its strength among the employees when the latter refused to go to work in order to attend the union meeting. The respondent at no time questioned the genuineness of the signatures on the cards. The undersigned finds that on December 14, 1942 the Union was the duly designated representative- of a majority of the employees in the aforesaid appropriate unit and that by virtue of Section 9 (a) of the Act was the ex- clusive representative of all the employees in that unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment and other conditions of employment" s9 Findings as to what transpired at the December 18 conference are based upon a reconciliation of testimony of Michelson. Wolinsky, Heckman and Pascal. 3; Pascal checked the names on the copies of the TWUA cards left with him and also the names appeal uig on the original cards of 45-B in his possession He testified that be found that TWUA did not represent a majority and that 45-B did represent a majority. However, the results of this check were not told by Pascal to TWUA until December 29. Pascal admitted that he was confused by the misspelling of 7 or 8 names on the TWUA cards and for that reason rejected these cards , although it later developed that these persons were actually employed by the respondent 35 That the union's majority continued after December 14, is hereinafter found in the Concluding Findings. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. December 21 conference between TWUA and the respondent ; the contract; plant reopen ; Bromberger -Wolinsky talks. At about 3: 30 in the afternoon of December 21, Baron and Cresanti accom- panied by the committee of employees met with Hockman and Korzenik in the latter's office. Baron stated that the TWUA wanted to negotiate a contract and claimed that the TWUA had 79 members among the respondent's production and maintenance employees Korzemk suggested that in view of the fact that 45-B also claimed to represent a similar amount and there were only 136 em- ployees in the unit, it would be advisable to have the Board certify the appropriate bargaining agency. Baron refused to agree to an election, stating that TWUA's experience in settling disputes in this manner with 45-B had been unfortunate. After further discussion and some assurance by Baron that if the respondent signed a contract with TWUA most of the employees would return to work, Hockman agreed to deal with the TWUA, provided that organization could show by their cards that they represented a majority of the production and main- tenance employees." Korzenik took the 79 cards that Baron proffered and, after eliminating 5 duplicates, read the names on the remaining 74 cards. Hock- man checked the names against a typewritten list and announced that all the 74 names represented the employees of the respondent. Terms of the contract were then gone into in considerable detail and all items were agreed upon except a wage increase demand. The next day this item was settled over the telephone and upon December 23 a contract was executed by the respondent and the TWUA. The contract contained a union shop clause and provided for the check-off of dues.97 The contract covered all the employees of the respondent except sales- men, clerical help, the head shipping clerk, Fred Laserson u and foremen Max Zaum and Saul Bromberger. After the respondent and the TWUA had arrived at the terms of the agree- ment on December 22, Hockman caused to be mailed a mimeographed letter to all the respondent's employees, as follows : - No doubt when you receive this letter, you will have been informed by your union, T. W. U. A. that all differences with our employees have been settled amicably. You are accordingly advised that we will commence operation as usual on Monday morning, December 28, 1942. Please report promptly at your usual hour. We have lots of work to do to make up for lost time and we will expect your fullest cooperation. With cordial regards and best wishes for a happy holiday, we are, Sincerely yours, FINE ARTS NOVELTY CORPORATION MAX ZAUM (Signed) At the time of the signing of the contract on December 23, the respondent furnished the TWUA representatives with a list of the addresses of all of its 3OHockman testified that before making this decision lie conferred privately with Kor- zenik and also called up Irving Boxenbaum ; that their decision was arrived at because (1) the TWUA represented some of the more skilled workers of the factory and those who had been honest with the respondent; and (2) while both unions were trying to make, a contract 45-B had struck without warning while the other did not. 37 By letters dated December 23'and 28 the parties agreed that the contract should be amended so as to provide for individual check-off authorizations, and unless secured within ninety days after December 28, 1943, the check-off would lapse as to the individual employee. 38 A clause provided that Laserson could join TWUA "if he desires ' and thereby come under the contract. FINE ART NOVELTY CORPORATION 503 employees.' On December 24, the TWUA sent to all the employees a mimeo- graphed letter signed by Baron telling of the contract it had secured, and stating that the plant would reopen on Monday December 28, at which time "all workers are to report-for work." At least some of the employees received both these mimeographed letters in the same mail. During the period from December 15, 1942, to at least the time of the signing of the contract, December 23, 1942, both unions continued their efforts to secure new members among the respondent's employees. On the morning of December 28 the respondent's plant reopened but the strike continued. Approximately 52 employees reported for work on the 28th4° After the contract with TWUA had been signed and the plant had reopened Bromberger told Wohnsky, according to the latter, that the respondent had one cutter work- ing and anticipated getting another and that if Wolinsky did not return to work he would loose his job; that he replied that if he did return he would have to sign with TWUA and have his dues checked off under the terms of the contract ; that Bromberger assured Wohnsky that he would see to it that he remained working without joining the TWUA or having dues for that organization checked off his pay. Bromberger did not specifically deny the above conversation but admitted that he met with Wolinsky on occasion and that they were good friends. Wolin- sky's testimony is therefore credited. 7. The bonus ; the strike ends. On the afternoon of December 31, as had been the custom for several years, the respondent held a party at the plant Co which all employees then working were invited. During the course of the party the respondent distributed money to each of the employees ranging in amounts from $5 to as high as $25, depend- ing on the length of service and the type of work done by the particular em- ployees. The year before the respondent had given money in somewhat similar amounts to its employees at the party. In years prior to 1941 the respondent presented gifts of perfume and other articles to its employees but no money. None of the striking employees excepting those who had returned to work by the 31st of December received any gift or bonus from the respondent in 1942. Hockman testified that similar amounts were given to the office employees in 1942. The Board contends that this contribution of money to the employees was a bonus. Hockman, when originally called by the Board as a witness,'referred to the contribution t,a the employees as a bonus It was not until his attention ^ A number of the union employees testified that during the period from December 15, when the strike started , to about December 20, they were approached by other employees or TWUA representatives at their homes and solicited to join the TWUA, although none of these representatives or the employees knew their hone address The Board contends that under all the cncunistances the reasonable inference is that the respondent furnished the TWUA with addresses of striking employees before December 23 in order to assist that organization This inference would be justified if the conclusionary statements of some of these striking employees who were solicited that "no one but the Company knew their address" be accepted as the fact . The undersigned does not believe that no one but the company knew of the addresses of these employees. Furthermore Theresa Rocco, one of the solicitors , testified that she leccived the address of one of the striking employees through a mutual acquaintance It is found that there is no evidence that the respondent furnished the TWUA with the addresses of its employees prior to December 23, 1942. "Various witnesses testified that the number of employees returning to work on the 28th was about 60 The above computation is based on the number of old employees who received bonuses from the respondent on December 31 as will hereatter appear, and Board's Exhibit 37, which is a list of employees on the respondent's pay roll for the week ending January 2 This list shows a total of 62 names However it contains the names of 10 employees who do not appear on the pay roll at the time the strike started, and ai e presumable new employees 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was called to the significance of the term "bonus" that he began using the term "present." He then testified that the term "bonus" and "present" meant the same to him. Webster's dictionary defines the term "bonus" as "something given in addition to what is usual or strictly due" and "money, or an equivalent, given in addition to an agreed compensation." Hockman further testified that he did not pay the employees on strike because they were not working. It is found that the respondent on December. 31 rewarded the employees who were working for it at that time by paying each of them an additional amount of money based on length of service and the type of work performed the previous year ; that the employees on strike were not similarly recognized and rewarded because they refused to abandon the strike and return to work on December 28. On January 6 a letter signed by Michelson, Klein, Mary Ludmar and Wo]in- sky was mailed to the respondent. It listed 84 employees of the respondent and stated that they were willing to return to work immediately provided they were not required to join the TWUA or pay dues to that organization or have dues to it deducted from their- pay. Hockman answered this letter on the 8th as follows : We have your letter of January 6, 1943 Please be advised that all people you named have been offered employment and they will be accepted up to January 12, 1943. However, we beg to state for the record that some of the people whom you offered returned to work have been working and are now working for us, despite your picket line. It would seem that your claim of representation is broader than the facts warrant and that our fears that you are not representative of our shop have been fully justified. On January 7 Hockman had prepared and sent a form letter to all employees not then working for the respondent advising them if they reported to work by January 12, 1943, they would be employed On January 11, 1943 the strike was abandoned and all striking employees who had not secured other employment returned to work for the respondent. This decision of the Union to call off the strike was based in part at least on an understanding arrived at with the TWUA to arbitrate all jurisdictional disputes. 8. Jurisdictional dispute settled ; TWUA rescinds contract; bargaining efforts renewed ; petition. In the meanwhile the conflicting jurisditional claims of United Furniture Workers of America and the Textile Workers Union of America in the New York Metropolitan area, were, by agreement, submitted to an arbitrator.41 On Feb- ruary 18, 1943, the arbitrator handed down his arbitration decision wherein he found that United Furniture Workers of America had exclusivb jurisdiction in certain types of industries including that of the respondent. On March 5, At- torney Racolin by letter again requested the respondent to bargain with the Union and inclosed a copy of the arbitration decision above referred to. On March 9 Korzenik acknowledged the receipt of this letter but stated that the arbitration decision, on the face of it, did not seem to decide anything affecting the respondent and In any event, we do not see how the award affects our clients because it was neither a party through the arbitration agreement nor to any of the hearings held pursuant to it. 41 The Union withdrew its previously filed charge against the respondent in accordance with the terms of the arbitration agreement. FINE ART NOVELTY CORPORATION 505 You know that we are bound by contract to the Textile Workers Union and until we are released from that contract, we do not consider ourselves free to consider the representations of any other labor organization. On March 19, 1943, pursuant to the arbitration award, the United Furniture Workers of America and the Textile Workers Union of America signed an agree- ment settling all overlapping jurisdictional claims and the TWUA expressly recognized its "lack of jurisdiction" in the Fine Art Novelty Corporation. The same day Michelson, Wolinsky and Sam Roth informed Hockman of the agree- ment and suggested that the respondent negotiate with the Union. Hockman referred the committee to Korzenik. Michelson attempted without success to reach Korzenik by telephone and finally on March 24 wrote him demanding a conference date. On the 26th by letter Korzenik answered Michelson stating that the situation is "somewhat unusual and we feel that under the circumstances, there ought to be certification by the N. L. R. B so that we know that we are dealing with an accredited representative of our employees." On March 25 the Union filed new charges against the respondent alleging violation of Section 8 (1) and (5) of the Act. On March 26 Sam Baron as general manager of the TWUA wrote Korzenik rescinding the December 23 contract. About this time Dorothy Pascal who was the shop chairman for the TWUA, on learning that the TWUA had lost the arbitration decision insofar as the respond- ent's plant was concerned, prepared in her home in her own handwriting a petition reading as follows : We the undersigners, workers of the Fine Art Novelty Corp. located at 503 Broadway, N Y. City, do not wish to be Members or be Represented by the Curtain, Drapery, Workers Union, Local 45-B U. F. W. A. CIO. Beginning about March 24, she, assisted by other members of the shop committee, circulated this petition among the respondent's employees in and out of the shop but not on company time and secured the signatures of 90 employees thereto. After the signatures had been secured she brought the petition to Field Examiner Pascal but was, informed that the matter was out of his hands. She then wrote a letter to Attorney Korzenik dated March 27 as follows : DEAR SIR : We the undersigned, acting the shop committee representing the majority of the workers of the Fine Art Novelty Co. are asking our Boss-that the concern: (1) does not deal with Local 45-B CIO. (2) that the boss deals (sic) with us as the shop committee. To show proof that we are the majority in this shop we are enclosing a petition signed by the workers. (Signed) SHOP COMMITTEE DOROTHY PASCAL THERESA Rocco ADELINE PRICE This letter, together with the petition was then presented by her to Korzenik about March 27. On April 3 a conference was held in Field Examiner Pascal's office, attended by Racolin, Michelson, Wolinsky and Safian, on behalf of the Union, and by Hockman and Korzenik for the respondent. Racolin asked that the respondent bargain with the Union. Korzenik produced the petition signed by the employees which had recently been handed to him opposing representation by the Union and stated that an election would have to be held to determine the bargaining representative. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. Plant closes During the course of the hearing on June 28 Hockman testified without dispute that the plant had been shut down indefinitely on June 24 because of lack of manufacturing material, inability to secure help or keep it because of regulations relative to raising wages. This testimony is credited C. Concluding findings ,The respondent became aware of the activities of the Union in its plant and the employees' interest therein in the early fall of 1942 Through Foreman Zaum it expressed to the employees its disapproval of the Union in November. Presi- dent Boxenbaum and Zaum made inquiries as to who attended union meetings and who was the "instigator" of the Union. General Manager Hockman asked Harold Monte if he started the Union and if he was in a position to take "a chance like that." By the above acts the respondent clearly demonstrated to the employees that the Union was not welcome in the plant so far as it was concerned. It was in this atmosphere that the Union representatives made their demand for recognition on December 14 and offered to prove their majority. The re- spondent refused this offer although at the time it had other concrete evidence of the union's strength among the employees by virtue of the walkout of an overwhelming majority of the employees that same day. It took the position that as the TWUA also claimed a majority, the matter could be settled only by a Board certification However, after reiterating its position again on December 18 that it would insist on an election before bargaining with either 45-B or the TWUA, within three days thereafter, it recognized and agreed to bargain with TWUA- after an ex parte check of that union's application cards. An ex- amination of the copies of the TWUA cards received in evidence at the hearing show that while TWVUA had a majority on December 21, not a single card sub- mitted was dated prior to December 15 By this act of recognition and the later signing of a union shop contract the respondent demonstrated its antipathy to 45-B and its favoritism to TWUA The respondent contends that it was forced to recognize and deal with the TWUA because 45-B refused to call off the strike and it was anxious to reopen the plant. The Union refused to call off the strike until it secured a contract. It is noted that in this connection the respondent took only two days to prepare and execute a contract with TWUA, so, that the time element in that respect was not important It was obviously not the contract, but the question of recognition that concerned the respondent. More- over, there was no showing that the respondent could not have reopened its plant at any time with a reduced force. When it did open its plant on De- cember 28, after the contract with TWUA had been executed, considerably less than fifty percent of the employees reported for work. It is found that the respondent was not acting in good faith when it refused to recognize the Union on December 14, 1942.' It is further found that on December 14, 1942 and at all times thereafter the Union was the exclusive representative of the employees of the respondent within the appropriate unit. When the respondent paid a bonus to its employees on December 31 it ignored the employees then on strike. By such act the respondent discriminated 42 The petitions submitted on April 3 by the respondent were negative in character and no proof that any other organization or group represented a majority Furthermore, any loss of majority after December 14 was the result of the unfair labor practices of the respondent and did not represent the voluntary acts of the employees International Association of Maclynists, etc. 311 U. S. 72 FINE ART NOVELTY CORPORATION '507 against them because of their membership in and activity on behalf of the Union. It is therefore found that on December 14, 1942, and at all times thereafter the respondent refused to bargain with the Union as the exclusive representative of its employees in the appropriate unit. By the above acts, and by the state- ments of Zaum, Boxenbaum and Hockman, above discussed, and by the attempt of Foreman Broinberger to have Wolinsky abandon the strike, the respondent has interfered with, restrained and coerced 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 respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate and susbtantial relation to trade, traffic, and commerce among the several States tending to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V THE REMEDY Since it has been found that the respondent engaged in certain unfair labor practices it will be recommended that the respondent cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act It has been found that the respondent, refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit. It has also been found that the respondent has ceased operating its business because of inability to secure material and keep its employees and there is no likelihood that the respondent will resume operations until after the war. It will therefore not be recommended that the respondent bargain collectively with the Union upon request's As heretofore found the respondent as a mark of appreciation of the work done by its employees for the year ending December 31, 1942, presented to each of them then working in its plant with a sum of money, ranging from $5 to $25 depending upon length of service and also upon the nature of the work per- formed by the particular employee. More than 50 percent of the employees however, who were then on strike or who were not working because of the strike, failed to receive any additional bonus or gift at the end of the year. Hockman made it perfectly clear, that the only reason these employees did not receive a bonus was that they were not working because of the strike. It is obvious that they were penalized in this respect because of their collective activities. It will therefore be recommended that the respondent pay to each of the employees who struck on December 15, 1942, a bonus equivalent to the amount he would have received on December 31 if there had been no strike. Upon the foregoing findings of fact and upon the entire record in the case the undersigned makes the following : CONCLUSIONS OF LAW 1. Local 45-B, United Furniture Workers of America, C. I 0. is a labor or- ganization within the meaning of Section 2 (5) of the Act. 2. All employees of the respondent exclusive of supervisory employees, fore- men, executives, officers, clerical employees and salesmen have at all times Metal Textile Corporation of Delaware and Textile Workers Union of America , Feb 20, 1943, 47 N. L R. B. 743. J 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD material herein constituted and they now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Local 45-B, United Furniture Workers of America, C. I 0, on December 14, 1942, was and all times thereafter has been the exclusive representative of all its employees in said unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on December 14, 1942, and at all times thereafter to bargain collectively with Local 45-B, United Furniture Workers of America, C. I. 0., as the exclusive representative of its employees in the appropriate unit, the respondent 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 its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged 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 commerce within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent has not engaged in unfair labor practices by (a) threaten- ing its employees with reprisals if they became members of or assisted 45-B, (g) assisting TWUA by counseling, urging and encouraging its employees to join that organization and by soliciting their signatures to application cards for the TWUA; or (c) threatening in April, 1943, to permanently close down its plant in preference to executing a contrast with 45-B, RECOMMENDATIONS Upon the basis of the foregoing findings and facts and conclusions of law, the undersigned recommends that the respondent, Fine Arts Novelty Corporation and its officers, agents, successors, and assigns shall : 1 Cease and desist from in any manner interfering with, restraining, and coercing its employees in the exercise of the rights to self-organization to form, join or assist labor organizations to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining for mutual aid and other 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) Make whole all its employees who went on strike December 15 and pay to each of them a sum of money equivalent to the amount said employees would have received as a bonus on or about December 31, 1942, if they had not been on strike ; (b) Post immediately in conspicuous places in its plant and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 of these recommendations; and (2 ) that the respondent take the affirmative action set forth in paragraph 2 (a) of these recommendations; (c) Notify the Regional Director for the Second Region in writing within twenty (20) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommenda- FINE ART NOVELTY CORPORATION 509 tions, the National Labor Relations Board issue and order requiring the respond- ent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (1) of the Act, by (a) threatening its employees with reprisals if they became members of or assisted 45-B; (b) assisting TWUA by counseling, urging and encouraging its employees to join that organization and by soliciting their signatures to application cards for the TWUA; and (c) threaten- ing in April, 1943, to permanently close down its plant in preference to executing a contract with 45-B. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board-Series 2 as amended, effective October 28, 1942, any party 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, Wash- ington, 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. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the board. J. J. FITZPATBICx, Trial Examiner. Dated August 30, 1943.