Vera Ladies Belt & Novelty Corp.

VERA LADIES BELT & NOVELTY CORP., ETC. 291 WE WILL restore to and permit participation in our profit-sharing plan for salaried employees by all old and new salaried employees who were or have been disqualified from participation therein because they have become members of a collective-bargaining unit recognized by us or have chosen to be represented for collective bargaining in an appropriate unit by Local 10, Office Employees International Union, AFL-CIO. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights of self-organization, to form labor orga- nizations, to join or assist Local 10, Office Employees International Union, AFL-CIO, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of employment as authorized by Section 8(a)(3) of the Act. DURA CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330. Vera Ladies Belt & Novelty Corp . and Nandor Mayer and Local 29, Retail, Wholesale & Department Store Union , AFL-CIO, Party to the Contract Local 29, Retail, Whole & Department Store Union , AFL-CIO (Vera Ladies Belt & Novelty Corp.) and Nandor Mayer and Vera Ladies Belt & Novelty Corp., Party to the Contract. Cases Nos. 2-CA-102443 and 2-CB-4110. December 23,1965 DECISION AND ORDER On September 14, 1965, Trial Examiner Abraham H. Mailer issued his Decision in the above-entitled proceedings, finding that Respond- ents had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent Vera Ladies Belt & Novelty Corporation, herein called Respondent Vera, filed certain exceptions to the Decision and a sup- porting brief, and Respondent Local 29, Retail, Wholesale & Depart- ment Store Union, AFL-CIO, herein called Respondent Local 29, filed an answering brief to Respondent Vera's exceptions.' 1 No exceptions were directed to the unfair labor practice findings of the Trial Examiner. 156 NLRB No. 34. 217-919-66-vol. 15 6-2 0 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of 'Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Decision, the exceptions and the briefs, and the entire record in this case, and hereby adopts the findings,2 conclusions, and recommendations 3 of the Trial Examiner with the modifications noted herein.'. [The Board adopted the Trial Examiner's Recommended Order with the following modification : Substitute the following for the fourth indented paragraph of Appendix A : [We are not required to vary or abandon any wages, hours, seniority, or other substantial benefit now accorded our employees, or prejudice the assertion by our employees of any rights they may now have.] 2 No exceptions were filed to the Trial Examiner's finding that Respondent Local 29 did not represent a majority of the employees in the appropriate collective -bargaining unit covered by the agreement when such agreement was entered into. Moreover, no exceptions were filed to the Trial Examiner 's further conclusion that Elba Castillo and Julia Pacheco should be considered as included in the appropriate unit during the criti- cal period . Accordingly, we find it unnecessary to consider the Trial Examiner 's finding that Klara Lipsitz should not be included in the appropriate unit as her inclusion in the appropriate unit would not affect the Trial Examiner 's finding that the Union did not represent a majority of the employees. 8 Respondent Vera contends that the Board should order the return to it of all payments which it made to a health and welfare fund pursuant to the unlawful collective -bargaining agreement entered into by Respondent Vera and Respondent Local 29. However, this is a matter which is irrelevant to the remedial action required in this proceeding under the Act. Cf. Heller Brothers Company of Newcomeratown, 7 NLRB 646, 656. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On September 14, 1964, Nandor Mayer filed a charge against Vera Ladies Belt & Novelty Corp.,' herein called Respondent Vera, in Case No. 2-CA-10243, and a charge against Local 29, Retail, Wholesale & Department Store Union, AFL-CIO, herein called Respondent Union, in Case No. 2-CB-4110. On November 16, 1964, Mayer filed an amended charge in each of these cases. Upon said charges and amended charges , the Regional Director for Region 2 of the National Labor Rela- tions Board, herein called the Board, on November 18, 1964, issued on behalf of the General Counsel a consolidation complaint , and notice of hearing , against Respondent Vera and Respondent Union, alleging violations by Respondent Vera of Section 8(a)(1), (2), and (3) of the Act, and alleging violations by Respondent Union of Section 8(b)(1)(A) and (2) of the Act. In substance, the complaint alleged that: on or about June 6, 1964,2 several of the production employees of Respondent Vera in concert with Respondent Union ceased work and went out on strike; on or about June 5 and 8, Respondent Union by its pickets and agents and by other persons acting on its behalf blocked the entrances to and exits from Respondent Vera's plant and premises and prevented employees of Respondent Vera from entering and leaving said plant and premises with an object to induce said employees not to cross the picket line established by Respondent ' The name of this party as amended at the hearing. 2 Unless otherwise specified, all events detailed herein occurred in 1964. VERA LADIES BELT & NOVELTY CORP., ETC. 293 Union; on or about June 5 and 8, Respondent Union by its pickets and agents in the presence of employees of Respondent Vera inflicted bodily injury and other harm to various employees and representatives of Respondent Vera with an object to induce said employees not to cross the picket line established by Respondent Union; on or about June 10, Respondent Vera and Respondent Union executed and since that date have maintained in effect and enforced a collective -bargaining agreement relating to the hire, tenure, and other terms and conditions of employment of the Respondent Vera, whereunder Respondent Vera recognized Respondent Union as the collective- bargaining representative of its employees in a unit consisting of Respondent Vera's production and maintenance employees , notwithstanding the fact that Respondent Union was not at the time of the execution of the agreement , nor at any time there- after, the duly designated or selected bargaining representative of a majority of the employees covered by such agreement ; said agreement contains, inter alia, provisions which require membership in good standing in Respondent Union as a condition of employment and tenure of employment . In its duly filed answer, Respondent Union denied the commission of any unfair labor practices . Respondent Vera did not file an answer to the complaint. Pursuant to notice , a hearing was held before Trial Examiner Abraham H . Mailer at New York, New York, on March 22 through 26, and 29 through 31, 1965. All parties were presented and were afforded full opportunity to be heard , to introduce relevant evidence, to present oral argument and to file briefs with me. A brief was filed by counsel for the General Counsel . Upon consideration of the entire record, including the aforesaid brief, and upon my observation of each of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESSS OF RESPONDENT VERA Respondent Vera, a New York corporation , maintains its principal office and place of business in the city of New York, where it is, and at all times material herein has been, engaged in the manufacture , sale, and distribution of ladies belts , novelties, and related products. During the year preceding the issuance of the complaint , the Respondent in the course and conduct of its business operations , manufactured , sold, and distributed products valued in excess of $37,000 to point outside the State of New York: 3 Glenfrey Dress Co------------------------------------- $5,852.90 Nassau Sportswear ------------------------------------- 63.36 Judy Kent,Inc ------------------------------------ ----- 3,543.08 Gro-Up Frocks , Inc------------------------------------ 4, 164.68 Joseph Love,Inc ----- ---------------------------------- 344.00 Sherbet Frocks, Inc------------------------------------ 1 , 445.87 Girl-land Ltd------------------------------------------ 185.94 Shepardess, Inc---------------------------------------- 2.03 Judy Ellen--- ----------------------------------------- 6,398.76 Peter Pan Swimwear----------------------------------- 1,720.45 Terri-Girl--------------------------------------------- 8,168.08 Tobi Brown------------------------------------------- 5,250.45 Total------------------------------- ------------ 37, 139.60 In addition , Respondent Vera, during the same period shipped merchandise valued in excess of $36,000 to nonretail companies situated in New York State, each of which shipped products valued in excess of $50,000 per year to firms outside the State of New York . Respondent Vera's sales to these companies are as follows: G & K Creations------------------------------------- $ 10,817.59 Daisy Sportswear, Inc---------------------------------- 26, 165. 54 Total------------------------------------------- 36,983. 13 3 Although some of these customers maintain offices and/or showrooms in New York City , shipments to them were made to their plants outside the State of New York, except for samples which were delivered to their showrooms . Respondent Union sought to prove that shipments to these concerns were made within New York City. I find the evidence offered by Respondent Union in this regard to be vague and unreliable. Its principal witness in this regard, Pedro Fonseca, admitted that although he wrapped the packages for shipment, he did not affix the shipping labels thereto. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The total amount of merchandise sold and delivered to Respondent Vera both in direct and indirect commerce is $74,022.73. This satisfies the Board's jurisdictional standards as established in Siemons Mailing Service, 122 NLRB 81, 85. Accordingly, I find and conclude that Respondent Vera is engaged in commerce within the mean- ing of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. IT. THE LABOR ORGANIZATION INVOLVED Local 29, Retail, Wholesale & Department Store Union , AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. IH. THE ISSUES 1. Whether Respondent Union attempted to or prevented the employees and repre- sentatives of Respondent Vera from entering the plant and engaged in physical assaults upon them in order to induce the employees of Respondent Vera to refrain from crossing the picket line. 2. Whether Respondent Union had been duly designated or selected as the collective-bargaining representative by a majority of Respondent Vera's employees in an appropriate unit when Respondent Vera and Respondent Union entered into a collective-bargaining agreement containing a union-security clause. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background-the appropriate unit It was stipulated at the hearing that 13 employees of Respondent Vera were prop- erly within an appropriate bargaining unit: Samuel Rochlitz, Nandor Mayer, Maria Rivera, Artemio Romero, Maria Pacheco, Martin Cordero, Pedro Fonseca, Jorge Colon, Luis Ortiz, Jose Cordero, Kathleen Gluck, Miguel Calle, and Armin Nieder- man. There is a dispute among the parties as to whether the following production employees who did not sign collective-bargaining designations for Respondent Union should be considered as being within the appropriate unit: Klara Lipsitz, Elba Castillo, and Julia Pacheco. The Respondent Union contends that the three employees in question should not be considered members of the appropriate unit. The facts con- cerning their employment and my conclusions thereon are fully stated in the appro- priate section of my concluding findings, infra. In the latter part of May, Respondent Union began an organizational campaign among Respondent Vera's employees, and by June 9, had signed up six of Respondent Vera's employees: Fonseca, Colon, Ortiz, Romero, Rivera, and Jose Cordero. Respondent Union contends that in addition to the foregoing it signed up several other employees including Calle prior to the execution of the contract. This conten- tion is more fully discussed in the appropriate section of my concluding findings. B. Sequence of events 1. Events of June 5 Respondent Union called a strike against Respondent Vera and began picketing the plant premises on Friday, June 5. Picketing was under the direction of Eliseo Barrios, secretary-treasurer of Respondent Union, who had appointed David Kahn, an employee of Respondent Union, as picket captain. The picket line consisted of Fonseca, Colon, Ortiz, and Romero, augmented at times by Rivera and one or more persons who were not employees of Respondent Vera. Between 8 and 8:30 a.m., on June 5, Adolph Rosenberg (also known as Avram Rosenberg), vice president of Respondent Vera, arrived at Respondent Vera's premises and sought to enter. Fon- seca left the picket line, met him at the door, and blocked his entry, saying, "You can't go in because you are no more boss. We are the boss." At the time, Union Representative Barrios and Kahn were present. Also present were several of Respondent Vera's employees who were not on strike.4 They entered the building after the police arrived.5 * Castillo, Maria Pacheco, Niederman, Mayer, and Rochlitz. c Respondent Union's witnesses Barrios, Ortiz, and Fonseca denied that they ever blocked entry into the Company' s premises . I do not credit these denials. The testimony of blocking of ingress on the several occasions detailed herein Is overwhelming and convincing. VERA LADIES BELT & NOVELTY CORP., ETC. 295 Between 10 and 11 o'clock of that morning, Adolph Rosenberg left the premises to get some coffee. When he attempted to reenter, Ortiz beat him. Barrios who was about 2 yards away told Ortiz to stop because he, Barrios, could lose his job, but did not restrain Ortiz physically. When the police arrived, Adolph Rosenberg complained to them and was taken to a police station with Ortiz. However, he did not prefer charges against Ortiz.° Also on June 5, Adolph Rosenberg sent employee Jose Cordero on an errand.? Watching from the window, Adolph Rosenberg observed that the pickets stopped Jose Cordero and went with him into the luncheonette next door. Adolph Rosenberg then sent Martin Cordero, Jose's uncle, to instruct him to carry out the errand. Martin gave Jose the message, but Barrios told him to leave his nephew alone. As he left the luncheonette, Colon, one of the strikers, struck him with his fist and knocked him unconscious . After Martin Cordero recovered consciousness, he observed Barrios standing in the window of the luncheonette. When the police arrived they sent him to the police station where he preferred charges against Colon and obtained the issu- ance of a summons against him. The summons, however, was never served. Subse- quently, Martin Cordero was sent to a physician by Respondent Vera.8 2. Events of July 8 On Monday morning, July 8, employees Elba Castillo and Miguel Calle arrived together at the company premises. In front of the premises were Barrios, Colon, Fonseca, Ortiz, Romero, and two other persons. As Castillo passed Colon, he threw some chocolate liquid over her head and shoulders. When she turned to face him, Colon threw the remainder of the contents of the container on her.9 Castillo then attempted to enter the company premises, but was physically barred by Romero. A female picket whom Castillo did not know grabbed her arm as she tried to enter and said, "You are not going to enter." Castillo remained outside until other employees and officers of Respondent Vera arrived, when they were escorted into the building by police. Calle also attempted to enter the building, but was severely beaten by Fonseca, Colon, and Ortiz, who pushed him down the street toward Seventh Avenue. Calle then returned home and communicated the next day with Respondent Vera and was sent to a doctor.10 Employee Maria Pacheco, too, was prevented from entering the building that morn- ing by the four strikers who blocked the door. Present also was a union representative whom she did not know by name, but whom she had seen at the plant, Like the others, she entered the building when the police arrived. When Adolph Rosenberg arrived that morning and attempted to enter the building, he was blocked by Union Representative Kahn and two strangers . At the time Romero was picketing. Rosenberg waited for the police who enabled him to enter. At about 5 p.m. that afternoon, Adolph and Eugene Rosenberg and Klara Lipsitz left the company premises escorted by police. The police escort left them at Sixth 8 The foregoing is based on the credited testimony of Adolph Rosenberg . Barrios testi- fied that the incident occurred at 8:30 a.m., when Calle arrived at work ; that Adolph Rosenberg urged Calle to go to work and that Ortiz told Rosenberg to leave Calle alone ; that Rosenberg thereupon pushed Ortiz and, when a policeman arrived , complained that Ortiz had beaten him . Ortiz also testified that Rosenberg had pushed him. Fonseca's version is different. He 'testified that Ortiz and the pickets were walking in a circle and "I don't know if it was accidentally that he [Ortiz] bumped into Avram. I saw that Avram pushed away his hand , not very hard ." I have found Barrios ' testimony un- worthy of credence in other respects , and I do not credit him in this instance either. On the other hand, Adolph Rosenberg appeared to be a timorous, inoffensive person, and it is difficult to conceive of his taking the offensive physically against anybody. Accord- ingly, I credit his version. Jose Cordero ' s union card is dated May 28, but he worked after the strike had started. The testimony of Martin Cordero who appeared to be a credible witness . Barrios testified that he was not present when Cordero was allegedly beaten, and Fonseca testified that he did not see anybody hit Cordero . I do not credit Barrios or Fonseca. 6 The testimony of Castillo and Calle . Both impressed me as credible witnesses. Calle is no longer employed by Respondent Vera and had no apparent interest in the outcome of the litigation. Barrios, Ortiz , and Fonseca testified that they did not witness any incident involving Castillo on June S. I do not credit their denials. 10 The credited testimony of Calle. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Avenue. From Sixth Avenue and 22d Street, they proceeded to the subway station at 32d Street, during which time they were chased by Fonseca and other pickets. Fonseca was brandishing a stick.11 3. The signing of the contract During the evening of June 9, Adolph and Eugene Rosenberg,12 accompanied by Klara Lipsitz, wife of Eugene Rosenberg, met with Joel Pave, president of Respondent Union, and discussed the terms of a collective-bargaining agreement. Agreement was reached by the negotiators late that night, but when Adolph and Eugene Rosenberg called at the home of President Vera Gruenfeld, and asked her to sign the contract, she refused and "threw them out of the house." Nevertheless, on Wednesday morn- ing, June 10, Pave called at the plant of Respondent Vera and the contract was signed there by Adolph Rosenberg as vice president. The contract contained a union- security clause and was effective as of June 9. As a result of the signing of the con- tract, the strike was called off and the employees returned to work that day. C. Concluding findings 1. As to violence and blocking of ingress The blocking of the ingress of employees Maria Pacheco and Castillo, the aggra- vated assault upon employees Martin Cordero and Calle, and the throwing of choco- late upon Castillo, all occurred in the presence of union representatives who did nothing to restrain the strikers involved in the incidents. Respondent Union is liable for such coercive misconduct which had a tendency to restrain employees, strikers and nonstrikers alike, in the exercise of their rights as employees. See, e.g., Cominunica- tions Workers of America, AFL-CIO (Ohio Consolidated Telephone Company), 120 NLRB 684, 686; Central Massachusetts Joint Board, Textile Workers Union of Amer- ica,, AFL-CIO (Chas. Weinstein Company), 123 NLRB 590, 591; District 65, Retail, Wholesale & Department Store Union, AFL-CIO (Eastern Camera & Photo Corp.) 141 NLRB 991, 995. The blocking of Adolph Rosenberg's ingress was likewise violative of the Act. As noted above, both incidents occurred in the presence of employees of Respondent Vera and in the presence of the union representatives who did nothing to restrain the strikers. To the contrary, one of the Union representatives participated in one of the incidents. N.L.R.B. v. Local 140, United Furniture Workers of America, CIO, et al. (Brooklyn Spring Corp.) 233 F. 2d 539 (C.A. 2), enfg. 113 NLRB 815; N.L.R.B. v. International Woodworkers of America, AFL-CIO and Locals s-426 and s-429 (W. T. Smith Lumber Co.) 243 F. 2d 745 (C.A. 5), enfg., 116 NLRB 507; United Steelworkers of America, AFL-CIO (Wright Line Division of Barry Wright Corpora- tion ), 146 NLRB 71; International Woodworkers of America (Region 5) (Pioneer Lumber Corporation), 140 NLRB 602, 606. Accordingly, I find and conclude that Respondent Union by the foregoing conduct violated Section 8(b) (1) (A) of the Act. I do not find that the incident involving the chasing of Adolph and Eugene Rosenberg and Klara Lipsitz on Sixth Avenue con- stitutes a violation of the Act by Respondent Union. The incident occurred at a substantial distance from the picket line, and there is no showing that either of the union representatives was present when it occurred. The liability of Respondent Union for Ortiz' attack on Adolph Rosenberg is open to doubt. It is true that when the attack occurred, Union Representative Barrios said, "Please don't hit him because I can lose my job." From this it could be argued that Barrios had repudiated Ortiz' action. On the other hand, it could be argued that in such a situation something more than a mere verbal request to refrain; i.e., some- thing akin to physical restraint, was called for. Or, it could be argued that this inci- dent was part of a pattern of violence all the incidents of which occurred in the presence of union representatives and, hence, was ratified by Respondent Union. However, it is unnecessary to decide this issue, inasmuch as the other incidents detailed above clearly require the issuance of a cease-and-desist order, and that incident, if found to be a violation of the Act, would merely be cumulative. "The foregoing is based on the credited testimony of Adolph Rosenberg and Klara Lipsitz. While Fonseca denied that the incident occurred , be admitted that he was carrying a cane on that day because of trouble with his knee. 12 Eugene Rosenberg is the foreman of Respondent Vera. Both Adolph and Eugene are brothers of Vera Gruenfeld , president of Respondent Vera. VERA LADIES BELT & NOVELTY CORP., ETC. 297 2. As to Respondent Union's alleged majority when the contract was signed As previously noted, the parties stipulated that 13 named employees were members of the appropriate unit. The eligibility of three other employees: Castillo, Julia Pacheco, and Lipsitz, is in dispute. The record shows that six members of the appro- priate unit had signed cards designating Respondent Union as their collective- bargaining representative. If no more than these six employees had so designated Respondent Union, then Respondent Union obviously did not represent a majority of the employees in the collective-bargaining unit when the Respondents herein entered into the collective-bargaining agreement, irrespective of the eligibility of the three disputed employees to be in the unit. Barrios, secretary-treasurer of Respondent's Union, testified that 10 or 11 employees had signed designation cards before the con- tract was signed. However, in response to a subpena, only six designation cards were produced. Barrios explained that the other cards had been in Respondent Union's office, but apparently had been lost or misplaced. He was unable to name any of the employees who had signed cards other than the six which he produced. I do not credit Barrios' testimony. Respondent Union also produced a checkoff authorization card signed by employee Calle. The checkoff authorization is dated June 5. However, Calle testified credibly that he signed the checkoff authorization on Saturday, June 27, at Respondent Union's office; that, while out for a walk he had met employee Colon and another employee who invited him to go to the Respondent Union's office; that he met Barrios there, and Barrios told him that everything was settled with Respondent Vera and tendered the card to him for his signature. He testified further that there was no writing on the card when he signed it, but that Barrios wrote something on it and put it into a drawer; that this was the only card he ever signed. In contradiction, Barrios testified that he was not present when Calle signed a card for the Union. Ortiz testified that he was present when Calle signed a card; that it occurred in the plant on Monday afternoon (June 8) when he went to get his pay; that Colon had given Calle the card; and that Romero and Fonseca were present. He testified further, however, that he did not recall -whether Calle gave the card back to Colon, nor did he recall whether the card was the same as he, Ortiz, had signed; i.e., a designation card. I do not credit Barrios' testimony; while, as I have previously indicated I found Calle to be a truthful witness, having no apparent interest in the outcome of the litigation. Ortiz' testimony, if credited, is inconclusive, since he admitted that he did not recall whether Calle gave the card back to Colon. I therefore. find that the only card Calle signed was the checkoff authorization which was signed on June 27, after the Respondents herein had entered into a collective-bargaining agreement. In view of all the foregoing, I find and conclude that Respondent Union was not the representative of a majority of the employees in the appropriate collective- bargaining unit covered by the agreement when such agreement was made, regardless whether the three disputed employees were members of the appropriate unit.13 '- Should it be found necessary to reach the question of the eligibility of the three disputed employees , I make the following findings in regard thereto: Elba Castillo: A regular operator and had been employed by Respondent Vera for almost 5 years. Although her name does not appear on the payroll for the week ending June 12, it is clear from the record that she worked regularly before, during, and after the week in which the contract was signed . The absence of her name from the payroll for the week ending June 12 is explained by the fact that her name appears twice on the payroll for the preceding week, once for her regular pay for that week , and the other time for a "bonus" of $300. It was satisfactorily explained that the "bonus" consisted of vaca- tion pay plus a loan, making a total of $300 which Castillo needed in order to send her daughter to South America. Although Castillo was entitled to 2 weeks ' vacation, she worked during her vacation period, thereby earning double pay. This appears to have been a fairly common practice among Respondent Vera's employees . The loan was repaid in installments. In view of the foregoing, I find and conclude that Castillo should be considered a member of the appropriate unit. Julia Pacheco: Employment during the year of 1964 consisted of 6i/ hours during the week ending May 29, 21% hours during the week ending June 5, and 32 hours during the week ending June 12. There is no evidence in the record that she was hired as a temporary employee . In the absence of such evidence and In view of the fact that she worked during the crucial week, I find and conclude that she was a regular part-time employee of Respondent Vera and therefore should be included in the appropriate unit. Stara Lipstiz: Eligibility involves the question of a family relationship. The guide- lines for determining her eligibility are laid down in International Metal Products Com- 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By entering into the aforesaid collective-bargaining agreement with Respondent Union under these circumstances, Respondent Vera unlawfully assisted and con- tributed support to Respondent Union in violation of Section 8(a) (2) of the Act; discriminated in regard to hire or tenure of employment to encourage membership in Respondent Union in violation of Section 8(a)(3) of the Act; and interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. Red Star Express Lines of Auburn, Inc. v. N.L.R.B., 196 F. 2d 78, 81 (C.A. 2), enfg. 93 NLRB 127; Interna- tional Ladies' Garment Workers' Union, AFL-CIO (Bernhard-Altinann Texas Corp.) v. N.L.R.B., 366 U.S. 731. Respondent Union thereby restrained and coerced employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(b)(1) (A) of the Act, and caused and attempted to cause, and is causing and attempting to cause, Respondent Vera to discriminate against its employees in violation of Section 8(a)(3) of the Act, in violation of Section 8(b)(2) of the Act. New York State Employers Association, Inc., et al., 93 NLRB 127, enfd. sub nom. Red Star Express Lines v. N.L.R.B., supra; International Ladies Garment Workers' Union v. N.L.R.B., supra. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section IV, above, occurring in connection with the operations of Vera Ladies Belt & Novelty Corp., set forth 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 com- merce and the free flow thereof. VI. THE REMEDY Having found that Respondent Vera has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act, I shall recommend that it cease and desist therefrom, and that it take certain affirmative action designed to effectuate the policies of the Act. parry, 107 NLRB 65, 67, where the Board held that in the case of a corporate employer "the mere coincidence of a family relationship between an employee and his employer does not negate the mutuality of employment interest which an individual shares with fellow employees , absent evidence that because of such relationship he enjoys a special status which allies his interest with those of management ." See also Cherrin Corp. v. N.L.R.B., 349 F. 2d 1001 (C.A. 6), enfg. 147 NLRB 527. Lipsitz is the wife of Foreman Eugene Rosenberg and the sister-in-law of President Vera Gruenfeld , but is carried on the payroll under her maiden name. She has been employed by Respondent Vera as an operator for about 6 years. She did not know Eugene Rosenberg prior to her employment by the Company and married him about 2 years after going to work for the Company . She performs the same work as she did before her marriage, which Is the same work as the rest of the operators , and she receives a wage comparable to that of the other operators. She arrives at work and leaves at the same time as the other operators . She does not punch a timeclock, but neither do the other operators who work on a piecework basis. She eats her lunch with the other employees and receives no additional benefits or special consideration as a result of her relationship to Eugene Rosenberg. She owns no stock, nor does she hold any office in the corporation. She was present during the negotiations between Union President Pave and Adolph and Eugene Rosenberg, but explained that she attended the negotiations because she wanted to be with her husband who was very aggravated and nervous. According to Lipsitz, corroborated by Adolph and Eugene Rosenberg, she did not participate in the negotiations. She testified that the only thing she said to Pave was, in answer to his question why she was so mad at him , that it was "because you wanted to force us to join the union." On the other hand, Pave testified that Lipsitz participated in the negotiations ; and "said the exact same things as the other two said." I find it un- necessary to resolve the conflict. The mere fact that Respondent Vera permitted her to attend the negotiations , even though it may have been for her own personal reasons, demonstrates that she enjoys a special status which allies her interests with those of management . I therefore find and conclude that Lipsitz should not be considered a mem- ber -of the appropriate unit. In view of the foregoing, if either Castillo or Pacheco , or both of them, is deemed to be a member of the appropriate unit, then there were a minimum of 14 employees in the appropriate unit, and Respondent Union did not have a majority at the time that the contract was signed , even if,'Calle were to be considered as, having designated the Re- spondent Union as his bargaining representative prior to the signing of the contract. VERA LADIES BELT & NOVELTY CORP., ETC. 299 Having found that the Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b)(1)(A) and (2) of the Act , I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, it is hereby ordered that: A. The Respondent, Vera Ladies Belt & Novelty Corp., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Contributing support to Local 29, Retail, Wholesale & Department Store Union, AFL-CIO, or to any other labor organization of its employees. (b) Recognizing Local 29, Retail, Wholesale & Department Store Union, AFL- CIO, as the representative of any of its employees for the purpose of.dealing with the Company concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment, unless and until the said labor organization shall have demonstrated its exclusive majority representation status pursuant to a Board-conducted election among the Company's employees. (c) Giving effect to the collective-bargaining agreement dated June 9, 1964, between Vera Ladies Belt & Novelty Corp., and Local 29, Retail, Wholesale & Depart- ment Store Union, AFL-CIO, or to any extension, renewal, or modification thereof., provided, however, that nothing in this Order shall require Vera Ladies Belt & Novelty Corp., to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its employees which the Company has established in the per- formance of this agreement, or to prejudice the assertion by employees of any rights they may have thereunder. (d) In any like or related 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 any agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Local 29, Retail, Wholesale & Department Store Union, AFL-CIO, as the exclusive bargaining representative of its employees for the purpose of dealing with the Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment, unless and until the said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among the employees of Vera Ladies Belt & Novelty Corp. (b) Post at its plant in New York, New York, copies of the attached notice marked "Appendix A." 14 Copies of said notice, to be furnished by the Regional Director for Region 2, shall, after being duly signed by its authorized representative, be posted by Vera Ladies Belt & Novelty Corp., immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the same conditions as set forth in (b) above, as soon as they are forwarded by the Regional Director, copies of the Respondent. Union's notice herein marked "Appendix B." (d) Notify the Regional Director for Region 2, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent Vera has taken to comply therewith.15 is In the event that this Recommended Order shall be adopted by the Board, the words "Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 2, in writing, within 10 days from the date of this Order, what steps Respondent Vera has taken to comply herewith." 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Respondent, Local 29, Retail, Wholesale & Department Store Union, AFL- CIO, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Acting as the exclusive bargaining representative of any of the employees of Respondent Vera Ladies Belt & Novelty Corp., for the purpose of dealing with said Company concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment unless and until said Union shall have demonstrated its exclusive majority representative status pursuant to a Board- conducted election among the Company's employees. (b) Giving effect to the collective-bargaining agreement dated June 9, 1964, between Vera Ladies Belt & Novelty Corp., and Local 29, Retail, Wholesale & Depart- ment Store Union, AFL-CIO, or to any extension, renewal, or modification thereof. (c) In any like or related manner causing or attempting to cause Vera Ladies Belt & Novelty Corp., its officers, agents, successors, and assigns, to discriminate against any employee in violation of Section 8 (a) (3) of the Act. (d) Restraining or coercing the employees of Vera Ladies Belt & Novelty Corp., by assaulting them, obstructing or impeding employees from entering or leaving the Company's premises, or by obstructing or impeding supervisors or officials of the Company from entering or leaving the Company's premises. (e) In any like or related manner, restraining, or coercing the employees of Vera Ladies Belt & Novelty Corp., 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 requir- ing membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its offices and meeting hall, copies of the attached notice marked "Appendix B." 16 Copies of said notice, to be furnished by the Regional Director for Region 2, shall, after being duly signed by an authorized representative of Respondent Union, be posted immediately upon receipt thereof, and be maintained by Respondent Union for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director signed copies of Appendix B, for posting by Respondent Company, at its New York, New York, premises, as provided above. Copies of said notice, to be furnished by the said Regional Director, shall, after being duly signed by Respondent Union's representative, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent Union has taken to comply herewith.17 'a See footnote 14, supra. 17 See footnote 15, supra. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT contribute support to Local 29, Retail, Wholesale & Department Store Union, AFL-CIO, or to any other labor organization of our employees. WE WILL NOT recognize Local 29, Retail Wholesale & Department Store Union, AFL-CIO, as the exclusive bargaining representative of our employees, unless and until the said labor organization shall have demonstrated its exclusive majority status pursuant to a Board-conducted election among our employees. WE WILL NOT give effect to the collective-bargaining agreement dated June 9, 1964, between Local 29, Retail, Wholesale & Department Store Union, AFL- CIO, and ourselves. WE WILL NOT vary or abandon any wage, hour, seniority, or other substantive features established on behalf • of our employees in performance of any such agreement, nor will we deny our employees any rights they may have thereunder. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. AUBURN RUBBER COMPANY, INC. 301 All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named labor organization or any other labor organization. VERA LADIES BELT & NOVELTY CORP., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 29, RETAIL, WHOLESALE & DEPARTMENT STORE UNION, AFL-CIO, AND TO ALL EMPLOYEES OF VERA LADIES BELT & NOVELTY CORP., NEW YORK, NEW YORK Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT act as the exclusive bargaining representative of any of the employees of Vera Ladies Belt & Novelty Corp., New York, New York, unless and until we shall have demonstrated our exclusive majority representative status pursuant to a Board-conducted election among the employees of the said company. WE WILL NOT give effect to the collective-bargaining agreement dated June 9, 1964, between Vera Ladies Belt & Novelty Corp., and ourselves, or to any exten- sion, renewal, or modification thereof. WE WILL NOT in any like or related manner cause or attempt to cause Vera Ladies Belt & Novelty Corp., its officers, agents, successors, and assigns to dis- criminate against any employees in violation of Section 8(a) (3) of the Act. WE WILL NOT restrain the employees of Vera Ladies Belt & Novelty Corp., by assaulting them, obstructing or impeding employees from entering or leaving the company's premises or by obstructing or impeding supervisors or officials of the company from entering or leaving the company's premises. WE WILL NOT in any like or related manner restrain or coerce the employees of Vera Ladies Belt & Novelty Corp., in the exercise of the rights guaranteed in Section 7 of the Act. LOCAL 29, RETAIL, WHOLESALE & DEPARTMENT STORE UNION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500. Auburn Rubber Company, Inc. and General Teamsters Industrial Employees, Local Union No. 292 and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Cases Nos. 28-CA-925 and 28-CA-927. December 23, 1965 DECISION AND ORDER On July 22, 1965, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that the Respondent 156 NLRB No. 30.