Harrisburg Children's Dress Company

In the Matter of HARRISBURG CHILDREN'S DRESS COMPANY cs nd INTERNATIONAL LADIES GARMENT WORKERS UNION Case No. C-791.-Decided August 241, 1939 Children's Garment Manufacturing Industry-Interference, Restraint, and Coercion-Company-Dominated Unlon: encouragement of and participation in by supervisory employees ; respondent ordered to withdraw recognition and completely disestablish as collective bargaining agency. Mr. Geoffrey J. Cunniff, for the Board. Mr. I. E. Schlesinger, of New York City, for the respondent. Mr. Elias Lieberman, of New York City, for the Union. Mr. Samuel Hanuller, of Harrisburg, Pa., for the Independent. Vr. Albert J. Hoban, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by International Ladies Garment Workers Union, herein called the Union, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint dated April 25, 1938, against Harrisburg Children's Dress Company, Harrisburg, Pennsylvania, 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) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notices of hearing were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent had dominated and interfered with the formation and administration of the Independent Children's Dress Workers of Harrisburg, herein called the Independent, had con- tributed support to it, and by other acts had interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 14 N. L. It. B., No. 81. 1035 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent duly filed its answer denying that it was subject to the jurisdiction of the Board and that it had engaged in the unfair labor practices alleged in the complaint. On May 5, 1938, in answer to the respondent's motion for bill of particulars, the Acting Regional Director supplemented the allegations of the complaint. At the same time he denied the respondent's application for two subpoenas. On May 6, 1938, the Acting Regional Director granted a notion to intervene filed by the Independent. The rulings of the Acting Regional Director are hereby affirmed. Pursuant to an amended notice, a hearing was held at Harrisburg, Pennsylvania, on May 9, 10, 11, and 12, 1938, before Howard Myers, the Trial Examiner duly designated by the Board. The respondent was represented by counsel, participated in the hearing, and was afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing, the Independent moved for a continuance and when its motion was denied by the Trial Examiner, took no fur- ther part in the hearing.' The ruling of the Trial Examiner is hereby affirmed. At the conclusion of the Board's case, counsel for the respondent made several motions to dismiss the complaint which were denied by the Trial Examiner. The Trial Examiner's rulings on these motions are hereby affirmed. At the close of the hearing counsel for the respondent renewed these motions and the Trial Examiner reserved ruling. During the course of the hearing the Trial Examiner made a number of rulings on other motions and on objections to the admis- sion of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 9, 1938, the Trial Examiner issued his Intermediate Re- port, copies of which were duly served upon the parties. He denied the respondent's motions to dismiss the complaint and found that the respondent had engaged in unfair labor practices affecting com- merce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. His rulings are hereby affirmed. I The Trial Examiner denied the motion when counsel for the Independent was unable to specify a date on which he would be able to proceed with the hearing. In oral argument before the Board and in briefs filed thereafter, the Independent contended' that the denial of its motion was an abuse of discretion and a deprivation of its right to a fair hearing. We are of the opinion that the Trial Examiner, in denying the Independent's motion for an indefinite postponement, committed no prejudicial error. In any event. as the Board's Order hereinafter set forth does not run against the Inde- pendent, it was not entitled to notice and hearing. Its presence was not necessary in order to enable the Board to determine whether the respondent had violated the Act or to make an appropriate order against it. National Labor Relations Board v, Pennsylvania Greyhound Lines, Inc. and Greyhound Management Company, 303 U. S. 261 (1938) ; National Labor Relations Board v. .Stackpo!c Carbon Company. 105 F. (2d) 167 (C. C. A. 3d). HARRISBURG CHILDREN'S DRESS COMPANY 1037 . On July 21, 1938, the respondent filed exceptions to the Intermedi- ate Report and requested an opportunity to present oral argument before the Board. Pursuant to notice, a hearing before the Board was held in Washington , D. C., on February 16, 1939, for the pur- pose of oral argument. All the parties were represented by counsel and participated in the hearing. The respondent filed a brief with the Board. The Board has considered the exceptions to the Inter- mediate Report and finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Harrisburg Children's Dress Company, is a Penn- sylvania corporation having its principal office and place of business in Harrisburg, Pennsylvania, where it is engaged in the manufacture of children's dresses. It operates exclusively as a contract shop 2 for L. Wohl and Co., herein called Wohl, which is engaged in the manu- facture and sale of children's dresses with its principal office in New York City. Wohl produces more than 100,000 dresses a year and its yearly volume of sales is in excess of $1,000,000. Leo J. Goldberger, who owns and operates Wohl as an individual, also controls the respondent'3 The operations of the respondent consist of pattern making, mark- ing and cutting, sewing, pressing, and examining. Raw materials, consisting chiefly of print-cloth materials, are purchased by WWWohl from manufacturers located throughout the United States and are transported to Harrisburg either directly from the manufacturer or by way of Wohl from New York City. Such raw materials are de- livered to a shipping department which Wohl maintains on the sec- ond floor of the respondent's plant and are then turned over to the respondent.4 Besides manufacturing entire dresses, the respondent cuts a quantity of material which is shipped by Wohl to plants located in Carbondale, Pennsylvania; Hagerstown, Maryland; and ' Many of the manufacturers in the clothing industry avail themselves of the services of contract shops in the manufacture of their product . The raw materials are sup- plied by the manufacturers , who also dispose of the finished product. The intermediate processing, or some of it, is turned over to the contract shop on a contractual basis. It is not unusual for a contract shop to operate exclusively on behalf of a single manufacturer. 8 See Matter of Harrisburg Children's Dress Company and International Ladies' Garment Workers' Union, 2 N. L. R. B. 1058, decided June 28, 1937 , in which the Decision and Order were introduced in evidence in the instant proceeding . An officer of the respondent testified that the "set-up" of the respondent was the same as it was at the time of the hearing in the above case. * See footnote 3. Prior to June 28, 1937 , raw materials used by the respondent were consigned either to the respondent or to Wohl . Thereafter all consignments have been made only to Wohl. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Puerto Rico, for further processing and then returned to the re- spondent for pressing and finishing. Upon completion all dresses are delivered by the respondent to the shipping department of Wohl and from that point approximately 90 per cent of the dresses are shipped to customers of Wohl located outside the State of Pennsyl- vania. The respondent employs from 200 to 250 employees. In 1937 it was credited with over $200,000 on the books of Wohl for work performed during that year." II. THE ORGANIZATIONS INVOLVED International Ladies Garment Workers Union is a labor organiza- tion admitting to membership employees of the respondent directly engaged in production but excluding supervisory and clerical employees. Independent Children's Dress Workers of Harrisburg is a labor organization admitting to membership employees of the respondent "other than those in a supervisory or salaried position or clerical position in the Main Office." III. THE UNFAIR LABOR PRACTICES A. The background of the unfair labor practices In October 1936 the Union attempted to organize the respondent's employees but found itself actively opposed by the respondent. Upon charges duly filed by the Union, the Board on February 18, 1937, issued a complaint against the respondent alleging that it had engaged in unfair labor practices by discharging two of its employees because they had joined the Union and by other acts had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. On June 28, 1937, the Board issued its Decision 6 in which it found that the respondent had thus interfered with, restrained, and coerced its employees and ordered the respondent to cease and desist from such interference, restraint, and coercion. One of the employees named in the complaint had been reinstated before the hearing and the allegations in regard to her discharge were dismissed by the Trial Examiner. The Board dismissed the allegations of the complaint with regard to the discharge of the other employee. 'See National Labor Relations Board V . Benjamin Fainblatt and Marjorie Faillblatt, a9 S. Ct. 668 ( 1939 ), reversing 98 F. (2d ) 615 (1938 ), and affirming 4 N. L. R . B. 596. 'Matter of Harrisburg Children 's Dress Company and International Ladies' Garment Workers' Union, 2 N. L. R. B. 1058. HA11RISBURG CHILDREN'S DRESS COMPANY 1039 B. The Independent On Wednesday, July 14, 1937, the Union called a strike against the respondent allegedly for the purpose of improving working conditions through unionization of the plant. Union members, who numbered less than half of the production employees, left the plant. With the remaining nonunion employees the respondent was able to continue production. On July 15, 1937, the second day of the strike, Florence Rien, an hourly paid employee who had remained at work, telephoned Samuel Handler, a Harrisburg attorney, and asked him to come to the plant. During the afternoon Handler arrived at the plant and upon inquiry was told where he could find Rien. Thereafter he conferred with her for more than half an hour on the second floor of the plant not far from where other employees were working. They discussed the formation of an unaffiliated labor organization. Although the con- ference took place during working hours Rien's time card showed that no deduction in her wages was made for the time so spent. In the light of Handler's testimony we do not credit Rien's assertion that she had no such conference with Handler but that she met him for the first time on the following day. Shortly before noon on Friday, July 16, 1937, Rien, whose duties as sampler operator permitted her to visit the different departments in the plant, notified the employees that a meeting would take place in the social room on the third floor during the lunch hour. Rien testified that she did not obtain permission to use the social room because, although as far as she knew it had never been used for pur- poses related to labor organization, she assumed that the respondent's employees could use it for any purpose they chose. Rien's assumption in the light of the past hostility of the respondent toward the Union can only be explained by her testimony that she was assisted in the formation of the Independent by Lila Dengler, a forelady. At the hearing and in its brief the respondent contended that Dengler was not a supervisory employee. Supporting this position Benjamin A. Goldberger, the respondent's president, testified that Dengler was engaged in operating her own machine from 60 to 75 per cent of the time and spent some of her time distributing work to the other operators in the sample department. On the other hand, he testified that Dengler worked directly under him, and received higher wages than any of the other operators in her department. Both Rien and Barbara Adams; who are employed in the sample department, testified that Dengler was their forelady. Following the organization of the Independent, Dengler's membership was termi- nated by its officers who decided that, as a supervisory employee, she 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was ineligible for membership under the bylaws. Dengler herself did not testify at the hearing. Dengler's authority over the operators of the sample department, coupled with the fact that she was recog- nized as a supervisor by the members of the Independent and other employees, leads us to conclude that she is a supervisory employee,T for whose activities herein the respondent is responsible. Some time after 12: 15 p. in. on July 16, 1937, when the employees had finished their lunch, they gathered in the social room where Rien introduced Dengler who thereafter acted as spokesman. Dengler explained the purpose of the meeting. In the words of Elizabeth Mayberry, one of the employees subsequently elected a representative in the Independent, "She said, something had to be done while they had the strike on the outside so she thought it would be a good thing to form a union of some kind." Mayberry's testi- mony was corroborated by Mary C. Cassell, secretary of the Inde- pendent, who testified as follows : Q. How long did Lilla talk? A. It wasn't very long. She told the girls what the purpose was, and if they were all in favor of forming this independent union. Q. What did she say what the purpose was? A. For keeping peace inside and keeping away from the strike. Dengler then proceeded to supervise the election of 14 representa- tives who in turn elected officers. So expeditiously was the organi- zation of the Independent carried out that by 1 p. m. all the employees were again at work. Within a few hours several of the representatives left the plant and conferred with Handler at his office concerning the selection of a name for the new labor organization and the drafting of bylaws. Other representatives remained at the plant and collected over $40 in dues from the employees who were working. The foreman was unable to recall whether the employees who left the plant obtained his permission to do so. The respondent introduced time cards of Rien and Helen Vergot. Rien's card showed that she had rung out at 2: 59 p. m. The time Vergot left the plant was marked in pencil by the foreman as 3 p. m.8 The cards of other employees who were active in the organization for that week and covering the fol- lowing weeks during which the Independent was formed were not produced by the respondent. Benjamin A. Goldberger testified that 7 Cf. Matter of T. W. Hepler and International Ladies' Garment Workers' Union, 7 N. L. R. B. 255. 8 During this period the employees regularly left the plant at 4 : 30 p. m. HARI,'ISBURG CHILDREN'S DRESS COMPANY 1041 the respondent ordinarily has no use for the cards and they are therefore not preserved. On Friday, July 16, the strike by the members of the Union was called off and all employees returned to work on the following Monday. On Thursday, July 22, the Independent held its first meet- ing in a public hall. At this meeting the employees adopted bylaws and the name Independent Children's Dress Workers of Harrisburg. Employees attending the meeting besides Dengler included Mary Murphy and Mary Gonder, foreladies in the pressing department, who, like Dengler, were later dropped by the Independent because they were supervisory employees. Thereafter. the committee of the Independent met during the lunch hour or after work in the social room. Rien and other rep- resentatives conducted a successful membership campaign in the hallway leading to the plant. In August, after the Independent was fully organized, supervisory employees were dropped upon advice of counsel. Sometime after August 15, 1937, the committee approached Ben- jamin A. Goldberger and presented certain demands, including a request for a 10-per cent increase in wages for all employees. When, after two conferences, all other terms were agreed upon, Goldberger stated that he did not have authority to grant such an increase and called his brother Leo into the conference. A raise of approximately 5 per cent was finally accepted by the Independent. No written agreement was signed but on August 19, 1937, the respondent posted the new terms of employment over the signature of Benjamin A. Goldberger. Since the first meeting in the plant on July 16, 1937,.the Independ- ent has collected membership dues in the plant. On pay day, im- mediately after the foreman has distributed the pay envelopes and often before he has left the department, the dues collectors ring out their time cards and collect dues from the employees in the plant. For time thus spent the collectors are reimbursed by the Independent. Apparently there was no request by the Independent for permission to collect the dues in this manner and the only explanation appearing in the record is that given by Benjamin A. Goldberger. He testified that he instructed his foremen not to permit the collection of dues unless the employees first checked out, because the Board's Order in the prior case directed the respondent not to interfere with the organization of any association or labor organization. In November 1937 Kantor, the foreman of the cutting room, asked the cutters to come to work 1/2 hour early the following day in order that all employees might leave earlier than usual and attend a meet- ing of the Independent. The cutters unanimously followed his advice. 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. ri onclu8ions - While Benjamin A. Goldberger did not. personally take part in the formation of the Independent, Lilla Dengler, a supervisory employee in charge of one of the departments in the respondent's plant and one to whom the employees would normally turn to learn the wishes of the respondent, urged, and to a large extent supervised, its forma- tion. It was the active participation of Dengler and other super- visors, together with the unsolicited cooperation of Goldberger who had but a short time before demonstrated his hostility to the Union, rather than any sudden determination to organize on the part, of Rien, which caused the formation and growth of the Independent. The effect upon the respondent's employees of the activities of the organizers of the Independent, unimpeded by the enforcement of ordinary' shop rules, and supported by the open, encouragement and participation in the formation of the Independent by Dengler and other supervisory employees, may be readily deduced. The em- ployees, who had previously witnessed the respondent's hostility to- ward the Union, saw Rien leave her work to confer openly with Handler in the plant; listened to the exhortations of Dengler, a supervisory employee substituting as spokesman for the non-super- visory and less articulate Rien, and urging them to form a union and keep peace in the plant; and observed several supervisory employees, who normally expressed the desires of their employer, join the Inde- pendent and remain members until it was fully organized. Several were advised by their foreman to -rearrange their working day to accommodate the Independent. There could be no doubt concerning the preference of their employer for the Independent. We find that the respondent has dominated and interfered with the formation and administration of the Independent and has con- tributed support to it and has thereby interfered with, restrained; and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III B and C above, occurring in connection with the operations of the respondent described 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 commerce and the free flow of commerce. V. THE REMEDY Since the respondent has dominated and interfered with the forma- tion and administration of the Independent and contributed support HARRISBURG CHILDREN ' S DRESS COMPANY 1043 to it, that organization cannot serve the employees as a true collec- tive bargaining agency. We shall therefore order that the respondent not only cease and desist from dominating and interfering with the administration of and contributing support to such labor organiza- tion but also that it withdraw recognition from and completely dis- establish the Independent as an agency for collective bargaining in respect to rates of pay, wages, hours of employment, or other condi- tions of employment. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Ladies Garment Workers Union and Independent Children's Dress Workers of Harrisburg are labor organizations within the meaning of Section2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of Independent Children's Dress Workers of Harrisburg and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (2) of the Act. 3. By interfering with, restraining, and coercing its employees in the.exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices .within the meaning of Section 8 (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. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Harrisburg Children's Dress Company, and its officers, agents,, successors, and assigns shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of Inde- pendent Children's Dress Workers of Harrisburg or with the forma- tion or administration of any other labor organization of its em- ployees, and from contributing support to Independent Children's Dress Workers of Harrisburg or to any other labor organization of its employees; (b) Recognizing Independent Children's Dress Workers of Har- risburg as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates of pay, wages, hours of employment, or other conditions of employment; (c) In any other manner interfering with, restr fining, or coercing its employees in the exercise of the right to serf-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining and other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Independent Children's Dress Workers of Harrisburg as a representative of any of its employees for the purpose of dealing with the respondent concerning griev- ances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablish Inde- pendent Children's Dress Workers of Harrisburg as such repre- sentative ; (b) Post immediately in conspicuous places within its plant at Harrisburg, Pennsylvania, and maintain for a period of at least sixty (60) consecutive days notices to its employees stating (1) that the respondent will cease and desist in the manner set forth in para- graphs 1 (a), (b), and (c) hereof; and (2) that it will take the affirmative action required in paragraph 2 (a) hereof; (c) Notify the Regional Director for the Fourth Region in writing within ten ten (10) days from the date of this Order of the steps' the respondent has taken to comply herewith. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.