Kessner & Rabinowitz, Inc.

In the Matter of KESSNER & RABINOWITZ, INC. AND THE LITTLE PRINCE CORP. and JOINT BOARD OF CLOAK, SUIT, SKIRT AND REEFER MAKERS' UNION, INTERNATIONAL LADIES' GARMENT WORKERS' UNION Case No. C-924-Decided March 16, 1939 Children's Garment Manufacturing Industry-Settlement : stipulation provid- ing for compliance with Act : including performance of the settlement agree- ment made with the Union-Order: entered on stipulation. Mr. Mark Lauter, for the Board. Mr. Harry I. Stein of New York City, for the respondents. Mr. Emil Schlesinger and Mr. Abraham Schlesinger, by Mr. Alfred Berman, of New York City, for the Union. Mr. Ralph Winkler, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges, amended charges, and supplemental charges duly filed by Joint Board of Cloak, Suit, Skirt and Reefer Makers' Union, International Ladies' Garment Workers' Union, 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 March 5, 1938, against Kessner & Rabin- owitz, Inc., New York, New York, and The Little Prince Corp.,' Columbia, Pennsylvania, the respondents herein, alleging that Kessner & Rabinowitz, Inc., herein called Kessner & Rabinowitz, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and that The Little Prince Corp., herein called The Little Prince, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. Copies of the 1 Incorrectly styled The Little Prince, Inc., in the complaint. 11 N. L. R. B., No. 108. 1192 KESSNER & RABINOWITZ, INC., ET AL. 1193 complaint and notice of hearing thereon were duly served upon the respondents and the Union. With respect to the unfair labor practices of the respondents, the complaint alleged in substance : (1) that the respondents, Kessner & Rabinowitz and The Little Prince, are commonly owned and con- trolled, and are operated as a single enterprise; (2) that Kessner & Rabinowitz discharged and locked out all of its employees at its place of business at Union City, New Jersey, and thereafter refused to reinstate them, for the reason that they joined and assisted the Union and engaged in concerted activities for the purpose of col- lective bargaining and other mutual aid and protection; (3) that on or about December 20, 1937, Kessner & Rabinowitz transferred and moved all its operations from its place of business at' Union City, New Jersey, to Columbia, Pennsylvania, where said operations were resumed by The Little Prince; (4) that in and after September 1937,' Kessner & Rabinowitz urged, persuaded, and warned its em- ployees at said Union City plant to refrain from becoming or re- maining members of the Union, threatening them with discharge, re- moval of its plant, and other reprisals if they became or remained members of the Union, and kept under surveillance meetings of the members of the Union employed at its plant at Union City, New Jersey; (5) that The Little Prince refuses and has continued to refuse to employ members of the Union or any other bona fide labor or- ganization' at its plant at Columbia, Pennsylvania; (6) that all the employees of Kessner & Rabinowitz, at its plant at Union City, New Jersey, constitute a unit appropriate for the purpose of collective bargaining, that at all times since April 1937 and thereafter, said respondent refused to bargain with the Union as the exclusive rep- resentative of all the employees in said unit, although requested to do so; and (7) that by the above and other acts, the respondents in- terfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act. On, March 14, 1938, the respondents filed an answer denying that they had engaged in any unfair labor practices. Pursuant to notice, a hearing was held at New York City, on March 24 and 25, 1938, before Martin Raphael, the Trial Examiner duly designated by the Board. The respondents, the Union, and the Board were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 24, 1938, the Trial Examiner filed his Intermediate Report, finding that the respondents, Kessner & Rabinowitz and The Little Prince, had engaged in the unfair labor practices as alleged in the complaint. He recommended that the respondents cease and desist from said unfair labor practices, bargain collectively with the Union upon request, offer reinstatement either at the plant at Union City, New Jersey, or at the plant of The Little Prince in Columbia, Pennsylvania, to the named employees whom he found had been un- lawfully locked out and discharged, make whole said employees for any loss of pay suffered by reason of their unlawful discharge, and take certain other affirmative action. The respondents, thereafter, filed exceptions to the Intermediate Report, and the Union and the respondents filed briefs in support of their respective contentions. Pending settlement negotiations, the parties waived a hearing which was scheduled on January 31, 1939, for the purpose of oral argument before the Board at Washington, D. C. On January 31, 1939, the respondents and the Union entered into a stipulation for the purpose of settling the case, subject to approval by the Board. The stipulation reads as follows : STIPULATION It is hereby stipulated by and between Kessner & Rabino- witz, Inc., and The Little Prince Corporation, the Respondents herein, and the International Board of Cloak, Suit, Skirt and Reefer Makers' Union of the International Ladies' Garment Workers' Union, hereinafter called the Union, that the proceed- ings before the National Labor Relations Board, arising out of a complaint of the Union, and upon which complaint a hearing was had, as a result of which hearing the Trial Examiner issued an Intermediate Report, be and the same are hereby settled under the following conditions : A. The National Labor Relations Board shall enter an order in this proceeding which shall provide that respondents, Kessner & Rabinowitz, Inc., and The Little Prince Corp., their agents, officers, successors and assigns, shall 1. Cease and desist from (a) In any manner interfering with, restraining or coercing their employees in the exercise of their right to self-organization, to form, join or assist the Joint Board of Cloak, Suit, Skirt and Reefer Makers' Union of the International Ladies' Garment Workers' Union, or the International Ladies' Garment Workers' Union, to bargain collectively through the said Union, or either of them, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. KESSNER & RABINOWITZ, INC., ET AL. 1195 (b) In any manner discouraging membership in the Joint Board of Cloak, Suit, Skirt, and Reefer Makers' Union, of the International Ladies' Garment Workers' Union, or the Interna- tional Ladies' Garment Workers' Union, or either of them. (c) In any manner refusing to bargain collectively with the Joint Board of Cloak, Suit, Skirt and Reefer Makers' Union of the International Ladies' Garment Workers' Union 2 of the Inter- national Ladies' Garment Workers' Union, as the representative of their production employees. 2. Take the following affirmative action to effectuate the poli- cies of the Act : (a) Perform in all respects the terms and provisions of the Settlement Agreements made this date between Respondents and the Joint Board of Cloak, Suit, Skirt and Reefer Makers' Union of the International Ladies' Garment Workers' Union and the International Ladies' Garment Workers' Union-a copy of which is hereunto annexed and made a part hereof-paragraphs 3 to , inclusive thereof to be specifically enumerated in the Order of the Board. B. The Respondents agree that the Order based on this stipu- lation as issued by the National Labor Relations Board, may upon application by the National Labor Relations Board, be embodied in a decree of any United States Circuit Court of Appeals, and they hereby waive their rights to contest the entry of any such decree by'any United States Circuit Court of Appeals, and further hereby waive their right to notice of an application by the Na- tional Labor Relations Board for the entry of any such decree. On February 21, 1939, the Board issued an order approving the above stipulation and making it a part of the record in the case. On the basis of the above stipulation, and upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS 4 Kessner & Rabinowitz, a New York corporation, and The Little Prince, a Pennsylvania corporation, are engaged in the manufacture, sale, and distribution of infants and children's wearing apparel and related products. They are substantially commonly owned and con- trolled and use the same showrooms and principal office at New York City. Kessner & Rabinowitz owns the trade name of The Little Prince Corp. 2 The parties intended "or" instead of "of." s Set forth in Appendix A of the Board's Order, infra. • These findings are based on stipulated facts. 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kessner & Rabinowitz maintained a plant at Union City, New Jer sey, until on or about December 31, 1937. Thereafter, it moved to and is now located at Columbia, Pennsylvania. The principal raw mate- rials used by Kessner & Rabinowitz are chinchilla, frieze, jersey, wool, flannel, leather, suede, and other products. During the period from March 1, 1937, to March 1, 1938, the respondent obtained from outside the State of New Jersey about 99 per cent of its raw materials, valued at approximately $365,000; and for the same period it shipped outside the State of New Jersey about 99 per cent of its finished products, valued at approximately $675,000. The Little Prince, incorporated in Pennsylvania on January 19, 1938, maintains a plant at Columbia, Pennsylvania. During the pe- riod from January 19, 1938, to March 1, 1938, it shipped outside the State of Pennsylvania about 100 per cent of its finished products, valued at approximately $6,500. We find that the above-described operations of the respondents, Kessner & Rabinowitz and The Little Prince, constitute, and at all times herein mentioned, have constituted a continuous flow of trade, traffic, and commerce among the several States. ORDER On the basis of the above stipulation and findings of fact, and upon 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 the respondents, Kessner & Rabinowitz, Inc., and The Little Prince Corp., their agents, officers, successors, and assigns shall : 1. Cease and desist from : (a) In any manner interfering with, restraining , or coercing their employees in the exercise of their right to self-organization, to form, join, or assist the Joint Board of Cloak , Suit, Skirt and Reefer Makers' Union of the International Ladies' Garment Workers' Union, or the International Ladies' Garment Workers' Union, to bargain collectively through the said Union, or either of them, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; (b) In any manner discouraging membership in the Joint Board of Cloak, Suit, Skirt and Reefer Makers' Union, of the International Ladies' Garment Workers' Union, or the International Ladies' Gar- ment Workers' Union, or either of them; (c) In any manner refusing to bargain collectively with the Joint Board of Cloak, Suit, Skirt and Reefer Makers' Union of the Inter- national Ladies' Garment Workers' Union, or the International Ladies' Garment Workers' Union, as the representative of their pro- duction employees. KESSNER & RABINOWITZ, INC., ET AL. 1197 2. Take the following affirmative action which the Board finds will effectuate the policies of the National Labor Relations Act: (a) Perform in all respects the terms and provisions of the Settle- ment Agreement attached hereto as Appendix A, which was made on January 31, 1939, between respondents and the Joint Board of Cloak, Suit, Skirt and Reefer Makers' Union of the International Ladies' Garment Workers' Union and the International Ladies' Garment Workers' Union. Paragraphs 3 to 7 inclusive of this Settlement Agreement provide as follows : 3. Kessner & Rabinowitz Inc., agrees that it will forthwith become a member of Infants' & Children's Coat Association, Inc., of 225 West 34th St., New York City, and agrees to be bound by and under the collective agreement dated July 12, 1937, sub- sisting between the said Association and the Union, except as herein modified. 4. Kessner & Rabinowitz, Inc., agree that it will immediately open a shop in Union City, New Jersey, and will install at least fifty (50) machines. Workers shall be employed as follows: (a) No less than 27 operators and a complement of additional employees in other crafts shall be employed on or before the first day of March, 1939, and (b) The remaining 23 operators and the complement of addi- tional employees in other crafts shall be employed between the first and the fifteenth days of June, 1939. In the selection of employees Kessner & Rabinowitz, Inc., shall give preference to all former employees, choosing first those who are presently unemployed. In the event that more than the re- quired number to be employed by the firm should apply for rein- statement, a raffle shall be used in the selection of the workers to be employed. 5. Kessner & Rabinowitz, . Inc., and The Little Prince Corp., agree that no garments shall be manufactured in the factory of The Little Prince Corp. or in any other factory in which Kessner & Rabinowitz, Inc. or The Little Prince Corp. have any proprie- tary interest directly or indirectly, or in any contracting shop, unless the Union City Plant of Kessner & Rabinowitz Inc., is fully supplied with work. However, it shall not be deemed a vio- lation of this agreement if surplus work is sent to The Little Prince Corp. prior to July 1st, 1939. 6. Kessner & Rabinowitz Inc. agree that they will not liqui- date their Union City, New Jersey factory( or go out of business so long as the Little Prince Corp. shall operate a factory or so long as Kessner & Rabinowitz Inc. operates a factory in places other than in Union City, whether the same is operated under its own name or under any other name. 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. If the Columbia factory, whether it be doing business under the name of The Little Prince Corp. or under any other name, shall not have liquidated by July 1, 1939, then it will enter into a Closed Shop agreement with the Union herein, effective as of that date, which agreement shall in all respects as to conditions of employment, wages and hours of work, and otherwise, be the same as prevails in International Ladies' Garment Workers' Union shops in similar localities, making the same products. APPENDIX A MEMORANDUM OF AGREEMENT made and entered into this 31st day of January, 1939, by and between Kessner & Rabinowitz, Inc., of 1350 Broadway, New York City, The Little Prince Corp., of Colum- bia, Pa., (substantially commonly owned and controlled), and the Joint Board of Cloak, Suit, Skirt and Reefer Makers' Unions of the International Ladies' Garment Workers' Union, 127 W. 33rd St., New York City, and the International Ladies' Garment Workers' Union of 3 West 16th Street, New York City. WITNESSETH : 1. These presents are in full settlement of all complaints, charges and all grievances under the National Labor Relations Act or other- wise had or charged by the International Ladies' Garment Workers' Union and/or the Joint Board of Cloak, Suit, Skirt and Reefer Makers' Unions against Kessner & Rabinowitz, Inc., and/or The Little Prince Corp. 2. In the event that the Stipulation of settlement dated this date and entered into between the parties hereto in settlement of the com- plaints of violation of the National Labor Relations Act charged by the Union and filed with the National Labor Relations Board, shall not be accepted by the Board, then the following presents shall be- come null and void and without prejudice to the rights of any one of the parties hereto. 3. Kessner & Rabinowitz, Inc., agrees that it will forthwith become a member of the Infants' & Children's Coat Association, Inc., of 225 West 34th St., New York City, and agrees to be bound by and under the collective agreement dated July 12, 1937, subsisting be- tween the said Association and the Union, except as herein modified. 4. Kessner & Rabinowitz, Inc., agree that it will immediately open a shop in Union City, New Jersey, and will install at least fifty (50) machines. Workers shall be employed as follows : (a) No less than 27 operators and a complement of additional employees in other crafts shall be employed on or before the first day of March, 1939, and KESSNER & RABINOWITZ, INC., ET AL. 1199 (b) The remaining 23 operators and the complement of additional employees in other crafts shall be employed between the first and the fifteenth days of June, 1939. In the selection of employees Kessner & Rabinowitz, Inc., shall give preference to all former employees, choosing first those who are presently unemployed. In the event that more than the required number to be employed by the firm should apply for reinstatement, a raffle shall be used in the selection of the workers to be employed. 5. Kessner & Rabinowitz, Inc., and The Little Prince Corp., agree that no garments shall be manufactured in the factory of The Little Prince Corp. or in any other factory in which Kessner & Rabinowitz, Inc. or The Little Prince Corp. have any proprietary interest directly or indirectly, or in any contracting shop, unless the Union City Plant of Kessner & Rabinowitz Inc., is fully supplied with work. How- ever, it shall not be deemed a violation of this agreement if surplus work is sent to The Little Prince Corp. prior to July 1st, 1939. 6. Kessner & Rabinowitz Inc. agree that they will not liquidate their Union City, New Jersey factory or go out of business so long as The Little Prince Corp. shall operate a factory or so long as Kessner & Rabinowitz Inc. operates a factory in places other than in Union City, whether the same is operated under its own name or under any other name. 7. If the Columbia factory, whether it be doing business under the name of The Little Prince Corp. or under any other name, shall not have liquidated by July 1, 1939, then it will enter into a Closed Shop agreement with the Union herein, effective as of that date, which agreement shall in all respects as to conditions of employment, wages and hours of work, and otherwise, be the same as prevails in International Ladies' Garment Workers' Union shops in similar localities, making the same products.