Pickwick Knitting Mills, Inc.

PICKWICK KNITTING MILLS, INC. 21 Pickwick Knitting Mills, Inc . and Alan Schwartz and Leo Finkelstein. Cases 29-CA-2067-1 and 29-CA- 2067-2 April 23, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND KENNEDY On December 8, 1970, Trial Examiner Sidney Sher- man issued his Decision in the above-entitled con- solidated proceeding, finding that Respondent had en- gaged in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. There- after, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, the brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' Upon the entire record,' including observation of the wit- nesses' demeanor, the following findings and recommenda- tions are made: 1. RESPONDENT Pickwick Knitting Mills, Inc., herein called Respondent, is a corporation under the laws of the State of New York and is engaged at its plants in New York City in the manufacture and distribution of various garments. It annually ships to out-of-state customers products valued at more than $50,000. It is engaged in commerce under the Act. 11. THE UNION Office and Distribution Employees ' Union, Local 99, Inter- national Ladies' Garment Workers Union, AFL-CIO, here- inafter called the Union, is a labor organization under the Act. 111. THE UNFAIR LABOR PRACTICES The only issue raised by the pleadings is whether Respond- ent discharged Schwartz and Finkelstein because of their refusal to join the Union, thereby violating Section 8(a)(3) and (1) of the Act. A. Sequence of Events Schwartz and Finkelstein graduated from high school on June 26. On June 29, Respondent's shipping manager, Olsen, offered summer employment to them and a friend of theirs, Turkenitz. The next day all three reported for work in the shipping and receiving room, and they worked that day, the first 3 days in July, and on July 13 and 14. Schwartz and Finkelstein were discharged toward the close of work on the 14th. Turkenitz continued to work until the end of August. Respondent is bound by a contract with the Union which contains a union-shop clause with a 30-day grace period. The Union's shop steward at Respondent's plant is Tulo. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that Respondent, Pickwick Knitting Mills, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. Respondent has excepted to certain of the Trial Examiner's credibility resolutions. It is the Board's established policy, however, not to overrule a Trial Examiner's credibility resolutions unless, as is not the case here, the preponderance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). Respondent also contends that the Trial Examiner was prejudiced as manifested by his conduct of the hearing and his findings of fact based on the uncorroborated testimony of the Charging Parties. This contention is not supported by the record. Accordingly we reject it. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The charge herein was served upon Respondent on July 16, 1970,' the complaint issued on August 31, and the case was heard on October 27. The only issue litigated related to alleged discriminatory dis- charges. After the hearing a brief was filed by Respondent. ` All dates are in 1970, unless otherwise shown. 190 NLRB No. 4 B. Discussion According to the testimony of Schwartz and Finkelstein, when they were hired by Olsen on June 29 he told them that they would have to join the Union, but they would have time to think about it. Such testimony was to the further effect that on June 30, their first day at the plant, they were approached by Union Shop Steward Tulo, who advised that they would receive union cards to fill out; that a few minutes later Olsen asked if they had spoken to Tulo; that, while riding home that evening in Olsen's car, all three boys were told by him that they had to join the Union, but did not have to worry about it until after the plant vacation period;' that Olsen's assistant, Zerykier, who was riding with them, suggested that Olsen put the Union off for the balance of the summer by pretending that he had not made up his mind whether to keep the boys;4 that early on July 13, Tulo handed all three boys certain cards and a few minutes later Olsen came on the scene and directed them to fill them out; that at noon that day, upon ascertaining that they had not yet complied, Olsen pressed them to sign the cards; and that, while driving them home that evening, Olsen said: Now, listen, boys, I don't want you fooling around with me or Tulo any more ... I told you that you'd have to join the union, and I want you to join now. That's all I For corrections of the transcript, see the order of November 13, 1970. That period extended from July 6 through 12. The Union's contract provided that employees need not join the Union, in any case, before the completion of their trial period. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD want to hear about it. When you get in tomorrow, you will take the cards, you will fill them out, and you will hand them in , and that will be it. Schwartz , as corroborated by Finkelstein , continued that, when he asked what benefits the boys would get from the Union, Olsen acknowledged that they would get none; that the next morning, when Tulo asked about the cards , the boys temporized; and that at noon, when Olsen broached the same matter, they again temporized. According to Schwartz, he was approached by Olsen at 2 that afternoon , and, when again pressed on the point , stated he believed he was entitled to a 30-day grace period , but Olsen retorted that such grace period did not apply to summer employees. Later that after- noon both boys, according to their testimony , were sum- moned, together with Turkenitz, to Olsen's office, where they were advised that he had talked to a union representative, who insisted on their joining the Union immediately, and were warned that , if they did not comply by 5 that evening, they were not to report for work the next morning. Schwartz added that about half an hour later Olsen approached him at his work station and reported that Turkenitz had decided to join the Union and urged Schwartz to do likewise. Finkelstein related that about the same time the following colloquy oc- curred between him and Zerykier: ... and he asked me what my decision was, if I was going to join the Union or not . And I said that I wouldn't. And he asked me why, and I said that it's the principle of it, and I believe we have thirty days, and I'd like to wait . And he spoke to me, you know , like he cared, and like it was, you know , he was very kind about it. He said that principle means nothing in life. And that in later life you learn that principles really don 't matter. It's just, if you need the money, you are going to work. ... I said at this time that ... It wasn't a matter of life or death whether I get the money from working, and that I would rather stand up on my principles.' Both boys declared that they did not return to work after July 14 because of their unwillingness to comply with Olsen's aforedescribed ultimatum conditioning their continued em- ployment on joining the Union. Olsen denied that he delivered such an ultimatum or that he at any time made any reference to the Union, except for advising the boys on June 29 that they would have to join it after 30 days. However, he admitted that at some time before their discharge he was told by Tulo that the boys had been given union cards, which they had not signed , but he pro- fessed not to know why Tulo would mention this to him, insisting that Tulo had never before discussed such a matter with him. According to Olsen, the sole reason for the discharge of the boys was their unsatisfactory performance on the job , includ- ing their tendency to fraternize at work and to indulge in excessive conversation and various mistakes made by them in their work. Zerykier confirmed much of Olsen 's testimony about the boys' shortcomings and that he had complained to Olsen on that score.' However, while he had no apparent difficulty in recalling the nature of their derelictions, Zerykier, when asked about the various discussions of the Union ascribed to him by the youths , vacillated between pleas of lack of recollection and firm denials. ' Finkelstein , also, averred that the day before , in appealing to him to join the Union , Olsen had cited the fact that the carfare that Olsen was saving for Finkelstein by driving him to and from work would more than cover the cost of joining the Union. 6 Two other employees , Henry and Dsilser , gave some testimony about such shortcomings, as observed by them , but there was no evidence that they reported these matters to Olsen. Schwartz and Finkelstein denied most of the misconduct with which they were charged . While it may well be that their proficiency during their first 6 workdays left something to be desired , I am satisfied that this was not the true reason for their discharge . As between them and Respondent's witnesses there is little difficulty in resolving credibility . Not only was I more favorably impressed by the boys ' demeanor, but there was also present here another factor which merits some com- ment. To reject their testimony about their various conversa- tions with Olsen and Zerykier one would have to credit these teenagers with the imagination and inventiveness of a Dick- ens, particularly when one considers Finkelstein's afore- quoted account of his conversation with Zerykier on July 14, in which the boy affirmed his devotion to the principle of the 30-day grace period and the older man gave him the fatherly advice to compromise with his principles and join the Union.' Thus, even apart from considerations of demeanor and the various matters cited above reflecting on the credibility of Olsen and Zerykier,e one would be predisposed to believe the youths solely by reason of the circumstantiality and spon- taneity of their testimony. I find , therefore, that Respondent discharged Schwartz and Finkelstein because they refused to join the Union , thereby violating Section 8(a)(3) and (1) of the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close , intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, I shall recommend that it be directed to cease and desist therefrom and take appropriate , affirmative action. ' It passes understanding , also, how the boys would know about the rather unusual "trial period" provision in the Union's contract (see in. 4, above), which provision was apparently alluded to by Zerykier in his re- marks to Olsen on June 30 , as reported by them. Namely , the aforenoted vacillations of Zerykier and Olsen 's admission that Tulo reported to him that the boys had not signed the union cards, coupled with Olsen 's implausible insistence that he had no idea what prompted Tulo to make that report. The boys ' version , on the other hand, offers a logical explanation therefor. Although, according to Schwartz and Finkelstein , Turkenitz was present at most of the disputed conversations about joining the Union , neither side called him as a witness . The General Counsel explained that he did not do so because Turkenitz had proved uncooperative when approached by a Board investigator. Respondent offered no explanation for its failure to call him. It may not be out of order to comment at this point on the plight of Respondent. It obviously had nothing to gain by insisting that the boys join the Union immediately , and there is no reason to doubt that , as Olsen told the boys and as Tulo's conduct indicates, Olsen was merely yielding to union pressure . Thus, it appears that, after playing the good Samaritan by giving the boys jobs and providing them with free transportation to and from work, Olsen ended up as the ostensible villain in the piece , whereas the Union escaped scot free. (While there was nothing in the Board 's procedures to prevent Respondent, itself, from filing a charge against the Union, and it may still do so, the realities of labor relations in the garment industry would probably preclude such a course .) It it regrettable that in a case like this the Board has no choice but to proceed only against the party named in the charge. PICKWICK KNITTING MILLS, INC. Having found that Respondent discriminated against Schwartz and Finkelstein by discharging them , I shall recom- mend that it be ordered to make them whole for any loss of earnings which they may have incurred as a result of Respon- dent's unfair labor practices. To said loss of earnings shall be added interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Since it is clear from the record that, had they not been discharged, their employment would have ended , in any event, at the beginning of the next school term when they entered college no order of reinstatement will be recommended. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging employees because of their refusal to join the Union before the expiration of the 30-day grace period in the Union's contract, Respondent violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER'° Upon the basis of the foregoing findings of fact and conclu- sions of law , and upon the entire record in this case, it is recommended that Respondent, Pickwick Knitting Mills, Inc., New York, New York, its officers , agents, successors, and assigns , shall be required to: 1. Cease and desist from: (a) Encouraging membership in Office and Distribution Employees' Union, Local 99, International Ladies' Garment Workers Union, AFL-CIO, or any other union, by discharg- ing or otherwise discriminating against employees because of their refusal to join a union, unless such joining is required by a valid union-security clause. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Make whole Alan Schwartz and Leo Finkelstein for any loss of pay suffered by them as a result of the discrimination against them, in the manner set forth in "The Remedy" section of the Trial Examiner's Decision herein. (b) Post at its Brooklyn, New York, plant copies of the attached notice marked "Appendix."" Copies of said notice, '° In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. " In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading " Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 23 on forms provided by the Regional Director for Region 29, after being signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." " In the event that this Recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify said Regional Director, in writing , within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self organization To form , join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things, except as provided in a lawful union-security contract. WE WILL NOT discharge or otherwise discriminate against employees because they refuse to join Office and Distribution Employees' Union, Local 99, International Ladies' Garment Workers Union , AFL-CIO, or any other union, except in accordance with the terms of a lawful union-security contract. WE WILL compensate Alan Schwartz and Leo Finkel- stein for any earnings lost by them as a result of their discharge on July 14, 1970. All our employees are free to join or not to join Office and Distribution Employees' Union, Local 99, International La- dies' Garment Workers Union , AFL-CIO. PICKWICK KNITTING MILLS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201 , Telephone 212-596-3535.