Belfer Brothers Co.

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Norman C.-Belfer, Elinore Belfer , Maurice Belfer' and Henriette Belfer, co-partners doing business under the name and style of Belfer Brothers Company and Bedding, Curtain and Drapery Workers Union Local 140, United Furniture Workers of America, AFL-CIO and Local 601, Upholsterers Inter- national Union, AFL-CIO, Party in Interest Belfer Brothers Company and United Furniture Workers of America, AFL-CIO, Bedding, Curtain and Drapery Workers Union, Local 140, Petitioner. Cases Nos. 2-CA-7142 and $-RC-10189. May 1, 1961 DECISION AND ORDER On January,11, 1961, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondents filed ex- ceptions to the Intermediate Report and a brief in support thereof. . -Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations.' ORDER ` Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, Norman C. Belfer, Elinore Belfer, Maurice Belfer, and Henriette Belfer, co-partners doing busi- ness under the name and style of Belfer Brothers Company, Brooklyn, New York, their officers, agents, successors, and assigns, shall: 1. - Cease and desist from : (a) Making any threat of reprisal or promise of benefit to employees because of their vote in an election of the Board. (b) Rendering assistance and support to Local 601, or to any other labor organization. - ' We find it unnecessary to-decide -whether Sam Froimowitz is a supervisor under the Act as, in any event, we agree with the Trial ,Examiner that he was acting as an agent for Respondent with respect to the conduct described in the Intermediate Report. 131 NLRB No. 72. BELFER BROTHERS COMPANY 471 (c) In any other manner interfering with, restraining, or coercing -its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at their Brooklyn, New York, plant, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after having been duly signed by Respondents' representative, be posted by Respondents immediately upon receipt thereof, and be maintained- by them for a period of 60 consecutive days, in conspicuous places, includ- ing all places where notices to, employees are customarily posted. Rea- sonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the election in Case No. 2-RC-10189 held on January 21, 1960, be, and it, hereby is, set aside, and' that Case No. 2-RC-10189 be remanded to the aforementioned Regional Director for -the Second Region for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a'bar- gaining representative.3 2 In the event than this order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 8 The new election shall be conducted among the production and maintenance employees employed at the Employer' s Brooklyn , New York, plant, including shipping and receiving employees, but excluding managerial employees , office clerical employees , watchmen, guards, and supervisors as defined in the Act, who are employed during the payroll period immedi- ately preceding the date of the issuance of notice of election. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate, the policies of the National Labor Relations Act, as amended, we hereby notify you that; WE WILL NOT make any threat of reprisal or promise of benefit to our employees because of their vote in 'an election of the Board. WE WILL NOT render assistance and support to Local 601, Up- holsterers International Union, AFL-CIO, or to any other labor organization. 472 DECISIONS OF NATIONAi, LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor or- ganization as a consideration of employment, as authorized in Section 8 (a) (3) of the Act, as amended. All our employees are free to become or remain members of Bed- ding, Curtain and Drapery Workers Union Local 140, United Furni- ture Workers of America, AFL-CIO, or any other labor organization. BELFER BROTHERS COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed by Bedding, Curtain and Drapery Workers Union Local 140, United Furniture Workers of America, AFL-CIO, herein called Local 140, the General Counsel of the National Labor Relations Board issued a complaint in Case No. 2-CA-7142, against Norman C. Belfer, Elinore Belfer, Maurice Belfer, and Henriette Belfer, Co-Partners Doing Business Under the Name and Style of Belfer Brothers Company, herein collectively called the Respondent, alleging the Respon- dent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (2) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended, herein called the Act. The Respondent filed an answer in which it admitted the jurisdictional allegations of the complaint, but denied the com- mission of any unfair labor practices. In Case No. 2-RC-10189 (not published in NLRB volumes), pursuant to the Board's Decision and Direction of Election, dated December 31, 1959, an election was conducted on January 21 1960, among the employees of the Respondent. On February 3, 1960, Local 140 Filed objections to the conduct of election. On March 10, 1960, the Regional Director for the Second Region issued his report on objec- tions, recommending that "second and third objections [of Local 140] be sustained and that the election be set aside." By order dated March 28, 1960, the Board directed a hearing be held before a Trial Examiner "to resolve the issues raised by the Petitioner's Objections 2 and 3 and the Employer's exceptions to the Regional Director's report." By order dated March 31, 1960, the Regional Director consoli- dated Cases Nos. 2-CA-7142 and 2-RC-10189. A hearing on the consolidated cases was held before the duly designated Trial Examiner at New York, New York, on June 20 and 21, 1960. At the opening of the hearing the General Counsel moved to amend the complaint. The motion was granted over the Respondent's objection. When the General Counsel rested his case, the Respondent moved to dismiss the complaint. The motion was denied. At the close of the whole case the Respondent reviewed the motion to dismiss. Ruling was reserved. The motion to dismiss is disposed of as hereinafter indicated. The General Counsel presented oral argument on the record. After the conclusion of the hearing, the Respondent filed a brief with the Trial Examiner. Both from the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a copartnership consisting of Norman C. Belfer, Elinore Bel- fer, Maurice Belfer, and Henriette Belfer, doing business under the trade name and BELFER BROTHERS COMPANY 473 style of Belfer Brothers Company, and maintaining its principal office and place of business in Brooklyn, city and State of New York. The Respondent is engaged at said place of business in the sale and buying at wholesale of feathers, down, and re- lated products. During the period of 12 months preceding the date of the complaint herein, the Respondent caused to be sold and distributed from its Brooklyn plant products valued at at approximately $1,100,000, of which products valued in excess of $1,000,000 were shipped by it in interstate commerce directly to States of the United States other than the State of New York. H. THE LABOR ORGANIZATIONS INVOLVED Bedding, Curtain and Drapery Workers Union Local 140, United Furniture Workers of America, AFL-CIO, and Local 601, Upholsterers International Union, AFL-CIO, herein called Local 601, are labor organizations which admit to mem- bership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES During the times mentioned herein the Respondent employed approximately eight persons, including Sam Froimowitz . The General Counsel contends that Froimo- witz was either a supervisory employee or an agent of the Respondent. The evidence shows Froimowitz was a cousin by marriage of Norman Belfer; that he had a key to the plant and opened it in the morning; that he stood by the timeclock as other employees checked in; that he gave orders to and directed the work of other employees; that he gave employees permission to take time off from work; that he signed receipts for deliveries; and that he had a higher hourly rate than any other employee. Froimowitz did not have the authority to hire or fire. When the employees were on strike during August 1959, he joined in the picketing and was a member of the committee of strikers when they conferred with management. I do not believe that the evidence justifies a finding that Froimowitz was a supervisory employee within the meaning of the Act. It appears that he was a group leader, performing manual work and relaying orders to the employees from Norman and Maurice Belfer. Further, the evidence shows that Norman and Mau- rice Belfer at times supervised the work of employees and gave orders to them di- rectly. The question of whether or not Froimowitz acted as an agent for Respondent will be disposed of hereinafter. During about the last week of December 1959, employee Charles Williams had a conversation with Norman Belfer. Belfer came to Williams' place of work and told him that he would like to form "an independent union." Williams replied that he would "think it over." Some few days after January 1, 1960, they had another conversation. Talking about the coming election, Belfer stated that he thought it would be "best" if the employees did not have a union, as he could then give them a raise and "a better health benefit." About a week later Belfer spoke to Williams again. He told Williams that he should vote for Local 601 and get an- other employee to vote the same way; and that if Williams did this, they would get a raise and an increased number of holidays. About a week before the election on January 21, 1960, Belfer told Williams that if the employees voted for Local 601, they would "make out better"; and that he had been "dealing with 601" and did not want to change. About 1 week before the election employees Rafael Davila was called to Nor- man Belfer's office. Belfer told him that if he would vote for Local 601, he would give him "a 25-cent raise" and guarantee him work for 1 year. Davila replied that he would let him know. On January 20 Froimowitz came to Davila and told him that Belfer wanted to know his decision. Davila replied that he was going to vote for Local 140. Froimowitz then said that Davila should not "make it worse" for the Respondent; and that if Davila wanted to get a day off with pay, he should "stay home" the day of the election. During the early part of January 1960, Norman Belfer had a conversation with employee James Dillard. He told Dillard that if he did not want to vote for Local 601, he could "vote for non-union"; that he should try to get another employee to vote the same way as this would "weaken 140 and give 601 a better chance"; that if Local 140 won the election, he would have to close the plant; that if Local 601 won, he would give the employees a raise and insurance benefits which would be better than Local 140 could obtain; and that he would "do something big" for Dillard personally. Some few days before the election Norman Belfer had a conversation with em- ployee John Sykes. Belfer told him that the employees should vote for Local 601 because it was "better" for both management and the employees; that he would 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have to close the plant if Local 140 won the election ; and that he would see to it that the employees got as many or more holidays as could be obtained by Local 140. The above facts are based upon the credited testimony of Williams, Davila, Dil- lard, and Sykes. Testimony to the contrary and denials of Norman Belfer are not credited . Froimowitz did not appear at the hearing as a witness . I find that in his conversation with Davila, Froimowitz was acting as Belfer's agent. The Respondent therefore was responsible for the statement made by him at the time. I find that the above statements of Belfer are violative of Section 8(a)(1) and (2) of the Act. Froimowitz' statement to Davila is also found to be violative of Section 8 (a)(1) and (2) of the Act, since it is clear that he was offering him a day off with pay if he did not appear at the election to vote for Local 140. Indirect- ly, of course, this constituted support for Local 601. W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connec- tion with the operations of Respondent described in section I, above , have a close,. intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that the Respondent cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 140 and Local 601 are labor organizations within the meaning of Section 2(5) of the Act. 2. 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 (a) (1) of the Act. 3. By promising benefits to employees if they voted for Local 601 and against Local 140 the Respondent has rendered assistance and support to Local 601 and thereby has engaged in unfair labor practices within the meaning of Section 8(a) (2) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] H. E. Fletcher Co. and Local 186, United Stone & Allied Prod- ucts Workers of America, AFL-CIO. Case No. 1-CA-3134. May 12, 1961 DECISION AND ORDER On July 29, 1960, Trial Examiner Louis Libbin issued his Inter- mediate 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 Inter- mediate Report attached hereto. The Trial Examiner also found that the' Respondent had not engaged in certain other unfair labor prac- tices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent and the General '131.NLRB ,No.71.