Robinson and Golluber

In the Matter of HERBERT ROBINSON AND OTTO A. GOLLUBER; COPART- NERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF ROBINSON AND GOLLUBER and WHOLESALE DRY GOODS EMPLOYEES UNION, FEDERAL LOCAL 19932 Case No. C-97.-Decided December 19, 1936 Importing Business-Textile Dyeing , Printing and Finishing Industry-Inter- ference, Restraint or Coercion.: interference with organizational activity ; ques- tioning employees regarding union activity ; compelling employees to disclose union membership ; intimidating union members ; expressed opposition to labor organization ; threat to close plant unless union organization and activity cease ; engendering fear of loss of employment for union membership and ae- tivity; refusal to meet representatives of employees-Discrimination: dis- charge-Reinstatement Ordered: to former or corresponding position at old or new location of operations-Back Pay: awarded. Mr. David A. Moscovitz for the Board. Myers d Sherwin, by Mr. David S. Myers, of New York City, for respondents. Mr. I. S. Dorfman, of counsel to the Board. DECISION STATEMENT OF CASE Upon charges duly filed by Wholesale Dry Goods Employees Union, Federal Local 19932, hereinafter called the Union, the Na- tional Labor Relations Board, hereinafter called the Board, by Elinore Morehouse Herrick, Regional Director for the Second Re- gion, issued its complaint dated February 17, 1936, against Herbert Robinson and Otto A. Golluber, co-partners, doing business under the firm name and style of Robinson and Golluber, New York City, hereinafter called respondents. In respect to the unfair labor practices, the complaint alleged that respondents discharged Eugene Shatz, Malcolm Schiffman, Harry Respler and Samuel Ezrol, employees of respondents, on November 7, 1935, and since said date have refused to reemploy them, for the reason that they joined and assisted the Union, in violation of Sec- tion 8, subdivisions (1) and (3), and Section 2, subdivisions (6) and (7) of the National Labor Relations Act, 49 Stat. 449, hereinafter called the Act. 460 DECISIONS AND ORDERS 461 The complaint and accompanying notice of hearing were duly served upon the parties. An answer, dated March 19, 1936, filed on behalf of respondents, alleged in substance that the Act was uncon- stitutional in a number of respects,. especially if construed to apply to respondents, and that the Board lacked jurisdiction over respond- ents and the subject matter of the complaint. Without waiving these objections, respondents answered further that the four employees were discharged for acting insolently towards respondents and other- wise misconducting themselves, and that since their discharge re- spondents permanently abandoned the department in which the four employees were engaged so that reinstatement of those employees has now become impossible. The holding of the hearing was delayed as a result of the filing of a bill of complaint by respondents in the District Court of the United States for the Southern District of New York requesting the Court to enjoin the Board from holding a hearing in this matter. Upon withdrawal of the bill of complaint, the hearing was held in New York City on April 13 and 14, 1936, before Daniel M. Lyons, Trial Examiner duly designated by order of the Board. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. Coun-, sel for the Board moved to amend paragraphs 1 and 2 of the com- plaint by striking therefrom references to "manufacturing", and by striking from paragraph 1 the words : "maintains a branch fac- tory in the City of Passaic, Passaic County, New Jersey", and to substitute therefor: "has fifty one per cent stock ownership in the Mandall Handkerchief Manufacturing Co., Inc., a New Jersey Cor- poration, located in the City of Passaic, Passaic County, New Jer- sey." The Trial Examiner granted the motion. Counsel for respondents moved to dismiss the complaint for virtually the same reasons as those set forth in the answer. The Trial Examiner de- nied the motion. At the close of the evidence introduced in support .of the complaint, and at the conclusion of the hearing, counsel for respondents again moved to dismiss the complaint on the grounds urged earlier in the hearing, and on the further ground that the allegations in the complaint had not been proven. The Trial Exam- iner denied the motions. The Trial Examiner's rulings on motions are hereby affirmed. We find no prejudicial error in any'of the Trial Examiner's rulings on admission or exclusion of evidence, and they too are hereby affirmed. Counsel for respondents was given leave to and did file a brief. Thereafter the Trial Examiner duly filed with the Regional Di- rector an Intermediate Report, in accordance with Article II, Section 462 NATIONAL LABOR RELATIONS BOARD 32 of National Labor Relations Board Rules and Regulations-Series 1, as amended, which was,duly served upon the parties. The Trial Examiner found that respondents had committed unfair -labor prac- tices within the meaning of Section 8, subdivisions (1) and (3) of the Act, as alleged in the complaint, and recommended that respond- ents cease and desist from such unfair labor practices, and that they offer reinstatement to the four discharged employees to their former positions, with back pay, in respondents' present warehouse. Excep- tions to the Intermediate Report and to the Trial .Examiner's rulings on respondents' motions to dismiss were duly filed by respondents. Upon the entire record in the case, the stenographic report of the hearing and all the evidence, including oral testimony and other evi- dence offered and received, the Board makes the following: FINDINGS OF FACT I. RESPONDENTS AND THEIR BUSINESS Respondents, Herbert Robinson and Otto A. Golluber, co-partners doing business under the firm name and style of Robinson and Golluber, have their principal office and general sales rooms in 'New York City. They are engaged in the business of importing laces, organdies, handkerchiefs and novelties, converting grey goods into fabrics, and selling and distributing the imported and converted articles. At the time of the discharge of the four employees here concerned, respondents' warehouse, stock room and shipping depart- ment were in; the same building which housed their office and sales rooms, and all goods were delivered to respondents and reshipped from this place of business. Since the latter part of November, 935, the warehouse, stock room and shipping department have been moved to Clifton, New Jersey, and all deliveries to and shipment from respondents have since that time taken place at Clifton, New Jersey. Respondents employ about 65 employees in New York City, and Clifton, New Jersey, and do an annual volume of business of approximately $2,236,000. Respondents also own 50 per cent of tha stock in Mandell Handkerchief Manufacturing Co., a corporation, which owns and operates a handkerchief hemming plant in Passaic, New Jersey. From the point of view of products handled, respondents' business falls naturally into three main divisions: (1) fabrics, (2) handker- chiefs, and (3) linens and organdies. Each will be described separately. Fabrics.-The sale of fabrics converted from cotton "grey goods" constitutes about 40 per cent of respondents' business. Orders are DECISIONS AND ORDERS 463 placed for cotton "grey goods", mainly with commission men 1 in New York City, but all of the goods originate in States other than New York,, generally in the New England and Southern States. The orders usually provide for delivery in installments over a period of ten weeks, and for payment of the premiums on insurance of the goods during this period by respondents. The goods are delivered not to respondents, but directly to bleacheries designated by respondents in the States of Connecticut, Massachusetts, New Jersey, Delaware, Rhode Island, North .Carolina,. or South -Carolina, where they are bleached, dyed or calendered during a period of three to, six weeks.- Upon completion of that process the goods are delivered to respondents. Rayon "grey goods", subsequently, converted into fabrics,, which constitute 10 per cent of respondents' sales, are purchased and deliv- ered in the same manner and from the same, sections, of the United States as cotton. "grey goods", but in contrast to cotton, 90 per cent of the rayon is bleached or finished at bleacheries in the State of New York. The finished rayon fabric, like the cotton fabric,, is then delivered to respondents. Handkerchiefs.-The sale of handkerchiefs constitutes, about 25 per cent of respondents' business. Herbert Robinson personally, pur- chases in Austria and Switzerland one per cent of all the handker-, chiefs in finished ,form,. and. in Belfast, Ireland, 30 per cent of the unfinished material for handkerchiefs iii the form of bleached linen. Cotton "grey goods", purchased in the same manner and from the same mills as grey goods for fabrics, make up the remaining 70 per 'cent of the unfinished material for handkerchiefs. Almost all of the "grey goods" are bleached and finished in bleacheries at Carlton Hill, New Jersey, undergoing the same processes, -and subject. to, the. same condition's, as "grey goods" for fabrics. Part of the finished cotton fabric, as well as some of the imported linens, are then-trans- ported to the Mandell Handkerchief Manufacturing Co. in Passaic, New Jersey, where the handkerchiefs are hemmed,, a process which normally takes t1tree to six weeks. The remaining portion of the finished cotton fabric is shipped from the bleacheries to Puerto Rico to be hand embroidered over a period of eight to ten weeks.3 Also, linens arriving at New York City from, Belfast, Ireland are some- times reshipped, to Puerto Rico- for the,same purpose. From the Mandell Handkerchief Manufacturing Co., the handkerchiefs are 1 Some of the commission men are financed by the mills which fill the orders. 2 The bleacheries grant to converters the privilege of storing the goods free of charge for a period of one year. 8 A substantial amount of hand embroidering is done for respondents in, Puerto Rico their annual labor cost amounting to $45,000. 464 NATIONAL LABOR RELATIONS BOARD conveyed to independent machine embroiderers in New Jersey, where in a period of from four to eight weeks the handkerchiefs are machine embroidered. Upon completion of the machine and hand embroidering, all handkerchiefs are shipped to the Mandell Handker- chief Co., a corporation owned 'solely by Benjamin E. Mandell, in the State of New Jersey, where the handkerchiefs are examined, counted, ironed, folded and placed in folders. The less expensive handkerchiefs complete this `course in two to three weeks, while the more expensive ones require one to three months. The hand- kerchiefs, ready for sale, are then transported to respondents. Linens and Organdies.-The remaining 25 per cent of respondents' business consists of the importation and sale of linens and organdies, the linens being imported from Belfast, Ireland and the organdies from Switzerland. To purchase these goods Herbert Robinson travels to Europe twice a year. Up to the latter part of Novem- ber, 1935, respondents imported only finished linens and organdies, but since that date they have imported laces in an unfinished state and have had them dyed at bleacheries in New Jersey. Upon delivery of the cotton and rayon fabrics, linens, organdies, and handkerchiefs to respondents, the goods are warehoused pending sale and shipment for a period averaging from four weeks to four months. Approximately 95 per cent of all goods sold by respondents are sold in New York City to resident department-store buyers and to visiting buyers from all over the country. Orders are also obtained by travelling salesmen,, engaged by respondents, who cover the greater part of the United States. Respondents also receive some orders by mail directly from customers. Approximately 95 per cent of all goods sold by respondents, whether in or out of New York State, are shipped to points in various States outside of the State of New York, by all available means of transportation, and accord- ing to instructions of the purchasers. At all times herein considered, and to the date of the hearing in this matter, respondents utilized the services of an independent trucker to convey the outgoing ship- ments from the shipping department to the appropriate transporta- tion agencies. Eugene Shatz and Harry Respler, two of the discharged em- ployees, had been employed as stock clerks. Upon receipt of an order by respondents, and after it had cleared through the credit department, it was their duty to pick out the goods, as described in the,order, from stock, to place it on hand trucks, and to wheel the trucks to and place the goods in designated bins. Other employees then checked the orders, and packed, and 'shipped out the goods. Sam Ezrol, another of the discharged employees, did similar work DECISIONS AND ORDERS 465 as a stock clerk in the handkerchief department; he also was in charge of sales and assisted in the keeping of records in that depart- ment., Malcolm Schiffman, the remaining discharged employee, was engaged in checking the goods placed in the bins by the stock clerks against the orders to make sure that the orders were correctly filled and properly billed. All four employees, therefore, were directly engaged in initiating the shipment of goods in commerce, the pur- chasers and destinations of the goods being known to them upon receipt of the orders. Sam Ezrol, besides this, sold goods in commerce. To sum up respondents' operations, at their behest goods move from Austria, Switzerland, Ireland, New England and Southern States to points in the United States designated by them. Again at their order, the goods move across State lines to other points in the United States and to Puerto Rico. A further order directs that all such goods, wherever they may be, be conveyed to the bottle-neck of respondents' place of business, from which, in turn, the same goods move on to purchasers in numerous States of the United States. Respondents themselves make no changes in the structure, color or texture of any of the goods they handle. They are not manu- facturers in any sense of the word, but simply middlemen between manufacturers and wholesalers and retailers. The four employees here most directly involved were engaged in the actual selection and preparation of goods for shipment in commerce, and in addition one of the four was also engaged in the sale of goods in commerce. We, therefore, find that respondents are directly engaged in trade, traffic and commerce among the several States and between foreign countries and the several States, and that their operations constitute a continuous flow of trade, traffic and commerce among the several States and between foreign countries and the several States. We further find that the four employees named in the complaint were engaged in such trade, traffic and commerce. II. THE UNFAIR LABOR PRACTICES During the month of July, 1935, certain employees of respondents became interested in forming a labor organization. Respler and Shatz were, delegated to inquire about existing labor organizations with which the employees of respondents might affiliate. The Whole- sale Dry Goods Employees Union, Federal Local 19932, affiliated with the American Federation of Labor, was chosen as the appropriate organization. A "steering committee" of eight employees of respond- ents, including the four employees subsequently discharged, was cre- ated, and Harry Respler was designated chairman. A number of 466 NATIONAL LABOR RELATIONS 130ARD respondents' employees became members of the Union. 'Thereafter, on November 4, 1935, the Union, by Jay Aar, an organizer, on a letter= head of Wholesale Dry Goods Union, wrote to respondents as follows : "Gentlemen : "In line with our policy to organize this industry, a representa- tive of this Union will call upon you Wednesday, November 6th at 11 A. M. "We are'quite sure that a short discussion will bring us to an amicable agreement." The following day, respondents answered as follows : "Gentlemen : "We are not in the dry goods business and are not interested in discussing-the subject matter, of your letter." On November 6, 1935, a representative of the Union called Golluber on the telephone, and reiterated that respondents were engaged in the dry good's business, and asserted that employees of respondents were paying clues. in the Union. Golluber replied, "Well, that may be. You may receive dues from people that are employed here aiid you may continue to do so, but nevertheless we don't care to discuss this matter with you." That afternoon, Albert Cudroff, manager ,of the shipping department, inquired among the employees whether they knew anything about the Union. The men offered him no aid in his quest for knowledge. During that same day Robinson asked Edwin Ezrol, manager of the lace and stock department, whether lie knew anything about the Union. The manager replied in the negative, but stated that only the existence of grievances causes employees to join la;bor,organizations. Robinson agreed. On November 7, 1935, respondents called a meeting of their male employees, numbering 37 or 39 in all. Golluber then informed the employees that he had received a letter from the Union; that lie had no objections to their joining any labor organization, but if they had any grievances they should discuss them personally with either Rob- inson or Golluber; that respondents had always treated them fairly; and that respondents did not really need the business, and could close it that very day, but were keeping it in operation solely for the bene- fit of their employees. The evidence is conflicting as to Golluber's next statement. Respondents and some of their witnesses testified that Golluber asked those who had grievances to step to one side. On the other hand, there is testimony, including that of one of re- spondents' own witnesses, David Landau, that Golluber 'asked all employees who did not belong to the Union to, step to one side. It is also significant that another of respondents' witnesses, Irving Hirsh, who resigned from the Union three days after the meeting of No- DECISIONS AND ORDERS 467 vember 7, found himself on that day aligned with the Union group, though he had no personal grievances, having been promised an in- crease in salary but a short time before the meeting. Whatever Gol- luber's words were, the intent and effect was precisely the same: all the Union members, 18 or 19, were in a group segregated from the non-Union employees. Golluber then turned to the Union members and asked them to state their grievances. He said that respondents would consider the grievances, and "if possible we will remedy them, but if there is anyone we cannot satisfy, you will have the permis- sion to resign, get your recommendation and two weeks' additional salary". He then singled out Mr. Lasher, an employee engaged in the piece goods department, and asked the cause of his dissatisfaction, indicating at the same time his surprise that Lasher had any griev- ances, since he had only recently been hired. Lasher replied that he was a married man, earning only $15 a week, and that he had been promised a raise. Philip Freund, in charge of personnel, at Gol- luber's suggestion, interjected: "You were not promised a raise. When I hired you I told you, there was no chance of any improve- ment." Lasher admitted this, and Golluber followed up: "Now, do you want to remain in this job, or do you want to quit?" Lasher chose to retain his job. At this point Eugene Shatz intervened and called upon Lasher and the other Union men not to talk, and asserted that respondents should see the Union delegate. Shatz was forth- with discharged and ordered to leave. Golluber then resumed his questioning of Union members, the first being Irving Weiner. After one question Robinson interrupted to remind Weiner of a loan re- spondents made to him when he was ill, and to comment upon his present ingratitude. Thereupon, Samuel Ezrol stepped forward and admonished the employees not to answer any further questions and to refer respondents to the Union. Robinson countered with a recita- tion of the liberality of respondents in transferring Ezrol to lighter work when he complained of a rupture, and in overlooking an error made by him in marking the price on a sample line. There were many versions of Ezrol's reply to the latter remark, but it is clear that he characterized it as an untruth. Thereupon Ezrol was also discharged. Undaunted, Golluber asked Malcolm Schiffman to state his griev- ances. Shiffman complained that he had not made "proper head- way" during the 11 years he had worked for respondents., Golluber replied that this condition was entirely his own fault. Schiffman indicated his dissatisfaction with the explanation, and then repeated the formula voiced by both Shatz and Ezrol. His discharge followed immediately. Golluber then turned to Respler, whom he reminded that respondents had paid him his salary during a period of five 5727-37-vol. It-31 468 NATIONAL LABOR RELATIONS BOARD weeks when he was not working as a result of an operation. Respler replied that he appreciated this kindness, but that he would answer no more questions, and would deal with respondents only through a representative of the Union. Thereupon he too was, discharged. Following this, Leon Horwitz, an employee, presented in an, apologetic manner certain minor grievances relating to the unsafe condition of respondents' elevator, the unsanitary condition of the premises, and the inadequacy of a certain partition. Significantly, he made no mention of wages. Although requested to reinstate the four discharged men, respond- ents have refused to do so. Respondents allege that the men were discharged for acting insolently towards their employers. The evi- dence does not sustain this contention. The hostility of respondents to the Union was obvious from the time they first learned of its: existence. After a. very brief, inept and unsuccessful attempt by indirection to determine the extent of the employees' interest in the Union, respondents under the guise of discussing grievances bluntly threatened to close the place of business, to discharge dissatisfied employees, and mercilessly humiliated every employee who dared to express a complaint, all for the transparent purpose of crushing in its incipiency the movement for a labor organization and collective bargaining. • Had respondents been genuinely interested in dis-. cussing grievances only, they would have spoken to each employee privately as they were wont to do for all the years they were in business, rather than have held a general meeting. Moreover, the circumstance that the meeting followed closely upon the communi- cation of the Union with respondents, the belief of respondents that grievances cause employees to organize into labor unions, Gollub'er's reference, in opening the meeting, to the receipt of a letter from the Union, the separation of employees into two groups in a manner designed to disclose the identity of members of the Union, and the subsequent intimidation and ridicule of employees, belie respond- ents' alleged reason for the holding of the meeting, and reveal the true motives underlying it. Shatz, Ezrol, Schiffman, and Respler each sensed respondents' purpose, and sought to stem the demoralization of the Union mem- bers, which seemed imminent. For this they were discharged. Their conduct was characterized by respondents as insolent and insubordinate, but in the circumstances of this case cannot be con- sidered otherwise than provoked and justifiable. Respondents have seized at the semblance in an effort to disguise and excuse the actual reason for the discharge. Subsequent events have proven that the discharged men had correctly appraised respondents' conduct, for within a few weeks after the meeting, membership in the Union DECISIONS AND ORDERS 469 dwindled to but a few employees, and more than two-thirds of the group that indicated Union affiliation at the meeting were discharged and replaced by new employees. We find that respondents have discriminated in regard to the hire' and tenure of employment of Shatz, Ezrol, Schiffman, and Respler for the purpose of discouraging membership in the Union, and that by such acts, respondents have interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondents contend that they have permanently abandoned the departments in which the four discharged employees were engaged, making reinstatement impossible. This contention is not in har- mony with the evidence, which discloses that the departments in question have not been abandoned, but simply removed to Clifton, New Jersey. Respondents are, therefore, in a position to offer them reinstatement at Clifton, New Jersey, if not at New York City. III. RESPONDENTS' CONDUCT IN RELATION TO INTERSTATE COMMERCE The 11 employees engaged in respondents' stock rooms, and the 12 engaged in the shipping department were present at the meeting of November 7, and were thus subjected to respondents' coercive tactics in common with other employees. Should a strike develop among respondents' employees, including stock room and shipping department workers, in protest against respondents' past behaviour or future repetition of such conduct, the flow of goods in commerce to and from respondents would undoubtedly be severely affected. We find that the aforesaid acts of respondents tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the entire record in the proceedings, the Board finds and concludes as a matter of law : 1. Wholesale Dry Goods Employees Union, Federal Local 19932, is a labor organization, within the meaning of Section 2, subdivision (5) of the Act. 2. Respondents, by discharging Eugene Shatz, Samuel Ezrol, Malcolm Schiffman, and Harry Respler, because they joined and assisted a labor organization, thus discriminating in regard to hire and tenure of employment to discourage membership in a labor organization, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8, subdivision (3) of the Act. 470 NATIONAL LABOR RELATIONS BOARD 3. Respondents , by interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8, subdivision (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2, subdivisions (6) and (7) of the Act. ORDER On the basis of the findings of fact and conclusions of law, and pursuant to Section 10, subdivision (c) of the National Labor Rela- tions Act, the National Labor Relations Bqard hereby orders that respondents , Herbert Robinson and Otto A. Golluber, and their agents, shall:, 1. Cease and desist from in any manner interfering with, restrain- ing or coercing their employees in the exercise of their 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 purposes of collective bargain- ing or other mutual aid or protection , as guaranteed in Section 7 of the Act; 2'. Cease and desist from in any manner discouraging membership in Wholesale Dry Goods Employees Union, Federal Local 19932, or any other labor organization of their employees , by discrimination in regard to hire or tenure of employment or any term or condition of employment, or by threats of such discrimination. 3. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Eugene Shatz, Samuel Ezrol, Malcolm Schiff man, and Harry Respler, immediate and full reinstatement to their former posi- tions or to positions corresponding to those formerly held , in respond- ents' place of business either in New York City or in Clifton, New Jersey, with all rights and privileges previously enjoyed, and with pay at not less than the rate paid at the time of their discharge; (b) Pay to each of said discharged employees a sum of money equal to that which each of them would normally have earned as wages from November 7, 1935, to the date of such offer of reinstate- ment, less whatever sums, if any , each of said employees may have earned as a result of employment during such period ; (c) Post notices in conspicuous places in all departments of re- spondents' places of business in New York City and Clifton, New Jersey, stating (1) that respondents will cease and desist as aforesaid; and (2) that such notices will remain posted for a period of at least thirty (30) consecutive days from the date of posting.