Gotham Sales Co., Inc.

In the Matter of GOTHAM SALES Co., INC. and UNITED WHOLESALE & WAREHOUSE EMPLOYEES, LOCAL 65, AFFILIA7 ED WITTI THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. C-181.Decided March 7, 1941 Jurisdiction : general merchandise manufacturing industry. Settlement : stipulation providing for compliance with the Act. Remedial Orders : entered on stipulation. Mr. Mark Lauter, for the Board. Mr. Samuel J. Ernstoff, of New York City, for the respondent. Mr. Edward Kuntz, Mr. J. Tabb, Mr. Walter Nelson, and Mr. David Livingston, of New York City, for the Union. Mr. Malcolm A. Hoffmann, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Wholesale & Warehouse Employees, Local 65, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated November 18, 1940, against Gotham Sales Co., Inc., New York City, 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), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, containing a notice of hearing, was duly served upon the respondent, the Union, and "The Committee," a labor organization alleged in the complaint to have been formed and sponsored by the respondent. The complaint alleged in substance, with respect to the unfair labor practices, (1) that the respondent discharged Max Weiss on March 1, 1940, and Murray Klein on April 6, 1940, and has since refused to reinstate them, for the purpose of discouraging member- 30 N. L. R. B., No. 18. 100 GOTHAM SALES CO., INC. 101 ship in the Union , thereby discriminating against said employees in respect to their hire and tenure of employment ; (2) that the re- spondent, on or about April 20, 1940, formed and sponsored "The Committee," a labor organization, and has since dominated and inter- fered with its administration and contributed support thereto; (3) that the respondent urged, persuaded , and warned its employees to refrain from becoming or remaining members of the Union, and threatened said employees with loss of employment if they aided said Union, and if they did not become or remain members of "The Committee"; and (4) that by these and other acts the respondent interfered with, restrained , and coerced its employees in the exercise of their rights to self-organization and to engage in'concerted activ- ities with other employees for their mutual aid and protection. On December 13, 1940, the respondent filed its answer admitting that it is' engaged in commerce, but denying the commission of the alleged unfair labor practices . Prior to a hearing, the respondent, the Union, and counsel for the Board entered into a stipulation in settlement of the case dated February 11, 1941 . The stipulation pro- vides as follows : IT IS HEREBY STIPULATED AND AGREED by and between Gotham Sales Co., Inc., by Harry Gottsegen, President , hereinafter re- ferred to as the "Respondent"; United Wholesale and Ware- house Employees of New York, Local 65, affiliated with the Congress of Industrial Organizations, by Walter Nelson, Repre- sentative, hereinafter referred to as , the "Union"; and Mark Lauter, Attorney for'the National Labor Relations Board, Sec- ond Region, as follows : 1. Gotham Sales Co., Inc. is and has been since on or about January 1 , 1936 a corporation duly organized under and existing by virtue of the laws of the State of New York.' ' 2. The principal office and place of business of the Respondent are located at 31 East 17th Street , New York City, hereinafter referred to as the "New-York office," and the Company maintains branch offices at ;30 South Wells Street, Chicago , Illinois, 512 Canal Street, New Orleans, Louisiana , and 1015 South Los Ange- les Street, Los Angeles, California. 3. The Company is engaged at its New York office in the pur- chase, sale and distribution of general merchandise as wholesale dealers. 4. The principal materials and products purchased, sold and distributed by the Company from its New York office include drug sundries and notions. 5. The gross volume of materials and products purchased by the Company at its New York office during the period from 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 1, 1940 to and including September 30, 1940, amounted to approximately in excess of $150,000.00, and the gross volume of materials and products purchased by and shipped to the Company at the New York office from points outside of the State of New York during the said period amounted to approxi- mately 50 per cent of the total volume of the Company's pur- chases for said period. 6. The gross volume of the Company's sales of materials and products from its New York office during the period from Janu- ary 1, 1940 to and including September 30, 1940, amounted to approximately in excess of $200,000 .00, and the gross volume of the Company's sales of materials and products from the New York office sold by and shipped by the Company to points out- side of the State of New York during the said period amounted to approximately 75 percent of the total volume of the Company's sales for the said period. 7. The Company stipulates and agrees that it is engaged in commerce at the New York office within the meaning of Section 2 of the National Labor Relations Act. 8. On fourth amended charges filed by the Union, the Na- tional Labor Relations Board, hereinafter referred to as the "Board," by Elinore M. Herrick , Regional Director for the Sec- ond Region , New York, New York, acting pursuant to the au- thority of Section 10, sub-section (b) of the National Labor Relations Act, 49 Stat . 449, hereinafter referred to as the "Act," and its Rules and Regulations, Series 2, as amended, Article IV, Section 1 , issued its complaint on the 18th day of November 1940, against the Respondent herein. . 9. A copy of the fourth amended charge , the complaint and the Rules and Regulations herein above referred to in paragraph 8, together with a notice of hearing, were duly served on the Respondent , and on December 13, 1940 the Respondent, by its attorney, filed an answer to the herein above referred to coin- plaint. Thereafter, and on December 2, 1940, Elinore M. Her- rick, Regional Director for the National . Labor Relations Board, Second Region, issued,a notice of postponement of the hearing scheduled to be heard on December 9, 1940'to`i)ecember 16, 1940; on December 13, 1940 issued a telegraphic notice postponing the hearing from December 16 , 1940 to December 17, 1940; on Decem- ber 16, 1940 issued a telegraphic notice postponing the hearing in the above-entitled proceeding indefinitely to continue on three days' notice by the Regional Director, for the Second Region; -and on December 30, 1940 issued a notice of the continuance of the hearing on January 20, 1941. GOTHAM SALES CO., INC. 103 10. The Respondent is and was at all times mentioned in the above referred to complaint and at all times herein mentioned an employer within the meaning of Section 2, sub-division (2)' of the Act. 11. The Union is a labor organization within the meaning of, Section 2, sub-division (5) of the Act. 12. Respondent and the Union hereby waive in the above- entitled proceeding-the right to a hearing, to the taking of testi- mony or other evidence before a Trial Examiner in this matter, and to the making of findings of fact and conclusions of law by the Board pursuant to the provisions of the Act. 13. This stipulation together with the fourth amended charge, the complaint and the original notice of hearing herein, the affidavit of service of the fourth amended charge, the complaint and the original notice of hearing, dated November 18, 1940, with corresponding return receipts, the answer of the Respondent to said complaint, and the notices of postponement with corre- sponding return receipts, and the National Labor Relation, Board's Rules and Regulations, Series 2, as amended, may be introduced into the record in the above-entitled proceeding by filing the;,said.,Acuments with the Chief Trial Examiner of the Board at Washington, D. C., and when so introduced shall con- stitute the entire record in this proceeding. '14. Upon the entire^record in the above-entitled proceeding, the National Labor Relations Board may forthwith, or at any future time, issue the following order : 1. Respondent, Gotham Sales Co., Inc., its officers, agents,-suc- cessors and assigns shall refrain from: (a) In any manner interfering with, restraining or coercing its employees in the exercise of their rights to self-organization, to form, join or aid labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act;, (b) Discourage membership in the United Wholesale and Warehouse-Employees of'New York, Local 65, affiliated with the Congress of Industrial Organizations, or any other labor organ- ization of its employees, by discharging or refusing -to reinstate its employees or any of them, or in any other manner discrimi- nating in regard to hire or tenure of employment, or any term or condition of employment, of its employees ; (c) In any manner dominating or interfering with the admin- istration of a labor organization known as "The Committee," or its successor or successors, or with the formation or administra- tion of any other labor organization of its employees, and from 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contributing aid or support to said organization or to any other labor organization of its employees. 2. Respondent shall take the following 'afrmaitive action: (a) Offer to Murray Klein full and unconditional reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority and other rights or privileges, by placing Murray Klein on a preferential rehiring list similar to Exhibit "A", annexed hereto and made a part thereof, and if employment is not immediately available for Murray Klein, in accordance with said preferential rehiring list, then ' offer - em- ployment to Murray Klein to his former or substantially equiva- lent position as such employment' shall become avakilable in accordance with said preferential rehiring list. (b) Make whole Murray Klein for the loss of pay he has.suf- fered by reason of his discharge, by paying torsaid Murray Klein the sum of $150. back pay; (c) Make whole Max Weiss for the loss - of pay, be has suf- fered by reason of his discharge by paying to said Max Weiss the sum of $150. back pay; (d) Withdraw and in the future withhold all, recognition from the labor organization known as "The Committee" as the representative of any of its employees for the purpose of dealing with the Gotham Sales Co., Inc. as a representative of its. em- ployees or any of them concerning grievances, labor disputes, wages, rate of pay, hours of employment, and other conditions of employment, and completely disestablish said organization as said representative; I, (e) Post immediately in conspicuous places in the New York office of the Gotham Sales Co., Inc., located at, 31 East 17th Street, New York, New York, and maintain fora period of at least sixty days, a notice stating that : (1) Gotham Sales Co., Inc. will not engage in the conduct from which it is ordered to refrain in paragraphs 1 (a), (b) and (c) of this Order. (2) Gotham Sales Co., Inc. will take the affirmative action set forth in paragraphs 2 (a), (b), (c) and (d) of this Order. (f) Notify the Regional Director for the National Labor Rela- tions Board, for the Second Region, within ten days from the date of this Order of the steps the Respondent has taken to comply therewith. 15. Upon application by the" National Labor Relations Board forthwith or at any future time, without further -notice to the Respondent, the United States Circuit Court of Appeals for the Second Circuit, or any other Appropriate Circuit Court of Ap- GOTHAM SALE'S CO,., INC. 105 ,peals, as provided in Section 10, sub-division (e) of the Act, may enter a decree embodying the enforcement of the 'aforemen- tioned Order of the Board in substantially the same form -set forth above in paragraphs 1 (a), (b) and (c), and 2 (a), (b), (c), (d) and (e) of paragraph 14, hereinabove, and the Re- spondent hereby expressly consents thereto; and expressly waives 'its right to contest entry of such decree. 16. Respondent, by entering into this stipulation, does not con- cede or admit and in fact denies the allegations of unfair labor practices contained in the complaint hereinabove referred to, and this stipulation is the result of the desire of the Respondent and the Union to amicably adjust this matter without the necessity of a hearing. 17. This stipulation is subject to the approval of the National Labor Relations Board and shall become effective immediately upon the granting of such approval by the said Board. .18. -It is expressly stipulated and agreed further that the terms of this stipulation constitute the entire agreement among the parties hereto, and it is further agreed that there is no verbal or other agreement of any kind which, in substance or fact in any way varies, alters or adds to this stipulation. On February 19, 1941, the Board issued and duly served on the respondent, the Union, and "The Committee," an order approving the - above stipulation, making it a part 'of the record, and, pursuant to Article II, Section 36, of National Labor Relations Board Rules and Regulations-Series 2, as amended, transferring the proceedings to the Board for the purpose of entry of a decision and order pursuant to the provisions of the stipulation. Upon the basis of the above stipulation and the entire record in the case, 'the Board makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Gotham Sales Co., Inc., a New York corporation, maintains its prin- cipal office and place of business in New York City where, as wholesale dealers, it is engaged in the purchase, sale, and distribution of general merchandise, including drug sundries and notions. It also maintains branch offices at Chicago, Illinois, New Orleans, Louisiana, and Los Angeles, California. During the period from January 1, 1940, to and including September 30,1940, the respondent purchased at its New York office materials and products amounting in gross volume to more than $150,000, approximately 50 per cent of which were shipped to the re- spondent's New York office from points outside the State of New York. 106 DECISIONS OFr NATIONAL LABOR RELATIONS-BOARD During the same period the respondent sold materials and products amounting in gross volume to more than $200,000, approximately 75 per cent of which were shipped and sold by the respondent to points outside the State of New York. The respondent concedes that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. We find that the above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. ORDER Upon the basis of the above findings of fact and stipulation, 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 Gotham Sales Co., Inc., its officers, agents, successors, and assigns, shall : 1. Refrain from : (a) In any manner interfering with, restraining, or coercing its em- ployees in the exercise of their rights to self-organization, to form, join or aid labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act; (b) Discouraging membership in the United Wholesale and Ware- house Employees of New York,'Local 65, affiliated with the Congress of Industrial Organizations, or any other labor organization of its -employees, by discharging or refusing to reinstate its employees or any of them, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment, of its employees; (c) in any manner dominating or interfering with the administra- tion of a labor organization known as "The Committee," or its successor or successors, or with the formation or 'administration of any other labor organization of its employees, and from contributing aid or support to said organization or to any other labor organization of its employees; 2. Take the following affirmative action : (a) Offer to Murray Klein full 'and unconditional reinstatement to his former or substantially equivalent position, without prejudice to his senority and other rights or privileges, by placing Murray Klein on a preferential rehiring list similar to Exhibit "A," annexed hereto and made a part hereof, and if employment is not immediately avail- able for Murray Klein, in accordance with said preferential rehiring list, then offer employment to Murray Klein to his former or substan- GOTHAM SAL'E'S CO'., INC. 107 tially equivalent position as such employment shall become available in accordance with said preferential rehiring list; (b) Make whole Murray Klein for the loss of pay he has suffered by reason of his discharge, by paying to said Murray Klein the sum of $150 back pay; - (c) Make whole Max Weiss for the loss of pay he has suffered by reason of his discharge by paying to said Max Weiss the sum of $150 back pay; (d) Withdraw and in the future withhold all recognition from the labor organization. known as "The Committee" as the representative of any of its employees for the purpose of dealing with the Gotham Sales Co., Inc. as a representative of its employees or any of them concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment, and completely disestablish said organization as said representative;, (e) Post immediately in conspicuous places in the New York office of the Gotham Sales Co., Inc., located at 31 East 17th Street, New York, New York, and maintain for a period of at least sixty (60) clays, a notice stating that: (1) Gotham Sales Co., Inc. will not engage in the conduct from which it is ordered to refrain in paragraphs 1 (a), (b), and (c) of this Order; (2) Gotham Sales Co., Inc. will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this order; (f) Notify the Regional Director for the National Labor Relations Board, for the Second Region, within ten (10) days from the date of this Order of the steps the respondent has taken to comply therewith. ExHmrr A Shipping Department Murray Klein David Schwartz William Gimenez