The Monarch Company

In the Matter of W. E. LIPSHUTZ, DOING BUSINESS AS THE MONARCH COMPANY and AMALGAMATED CLOTHING WORKERS OF AMERICA Case No. C-765.-Decided August 29, 1939 Clothing Manufacturing Industry Interference, Restraint, and Coercion: anti-union statements and activity ; threats to discharge union members ; per- suading employees to refrain from union activity-Discrimination: charges of, not sustained-Order: certain employees temporarily laid off placed on pref- erential list for reinstatement when employment available. Mr. Charles D. Dimmock, Mr. Louis Lib bin, and Mr. Maurice J. Nicoson, for the Board. Mr. Albert E. Mayer, of Atlanta, Ga., for the respondent. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by Amalgamated Clothing Workers of America, herein called the Amalgamated, the National Labor Relations Board, herein called the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued its com- plaint dated May 28, 1938, against W. E. Lipshutz, doing business as The Monarch Company, Atlanta, Georgia, herein called the re- spondent, alleging that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent and the Amalgamated. Concerning the unfair labor practices, the complaint alleged in substance that the respondent discouraged membership in the Amal- gamated by discharging and.refusing to reinstate seven named em- ployees' because they had joined and assisted the Amalgamated, and by the aforesaid acts, by preventing the free distribution of cir- 1 Loretta Williams, Mae Bell Haney , Frances Drake, Ella Marcus, Hessie Toney, Edna Earle Cantrell , and Lola Belle Garrett. 14 N. L. R. B., No. 99. 1196 NV. E. LIPSHUTZ 1197 culars by the Amalgamated, by wearing certain badges or buttons insulting and condemning the Amalgamated, and by other acts in- terfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. On June 4, 1938, the respondent filed his answer to the complaint in which he admitted certain allegations thereof, but denied the allegations of unfair labor practices, and averred affirmatively that one of the employees named in the complaint had been discharged for cause and that the others had been laid off because of a sea- sonal business lull, and had been told to inquire from time to time concerning work. Pursuant to notice, a hearing was held from June 6 to 11, 1938, at Atlanta, Georgia, before Madison Hill, the Trial Examiner duly designated by the Board. The Board and the respondent were rep- resented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the hearing the Trial Examiner sustained the objection of counsel for the Board to a question addressed to the witness, Runnell Jackson, by the respondent's counsel as to whether the witness had understood a question previously propounded by counsel for the Board and whether she had intended to answer as she did. We are of the opinion that the question was proper and that the ruling is erroneous. It is hereby overruled. Counsel for the respondent proffered the answer of the witness, to wit, that she had not under- stood the question, that she had not intended to testify that the respondent had made a certain anti-union remark, and that she had not heard the respondent make such remark. We accept the proffer as evidence, as if the witness had so testified. Numerous motions and other objections to the admission of evidence were made and ruled upon by the Trial Examiner in the course of the hearing. The Board has reviewed the rulings of the Trial Examiner, and, with the exception above noted, finds that no prejudicial errors were com- mitted. With that exception the rulings are hereby affirmed. On July 9, 1938, the Trial Examiner filed his Intermediate Report, copies of which were served upon all parties. He found that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from the unfair labor practices; that the respondent offer to Frances Drake, Ella Marcus, Edna Earle Cantrell, and Loretta Williams immediate and full reinstatement to their former positions with back pay, and that the allegations of the complaint relating to Hessie Toney, Mae Bell Haney, and Lola Belle Garrett be dismissed. Exceptions to the Intermediate Re- 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD port and a brief in support thereof were thereafter filed by the respondent. Pursuant to notice served on all parties, a hearing was held before the Board in Washington, D. C., on June 23, 1939, for the purpose of oral argument. The respondent and the Amal- gamated were represented by counsel and participated in the argu- ment. The Board has considered the exceptions of the respondent and his brief in support thereof and, in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, 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 W. E. Lipshutz, an individual doing business as The Monarch Company, is engaged at a plant in Atlanta, Georgia, in the manu- facture and sale of men's and boys' cotton wearing apparel, con- sisting principally of suits, trousers, and jackets. The principal raw materials used by the respondent are cotton cloth, thread, buttons, needles, machinery, and parts. Approxi- mately 75 per cent of such raw materials originate outside the State of Georgia. The respondent's annual sales aggregate approximately $250,000, of which approximately 75 per cent are shipped from the respondent's plant to points outside the State of Georgia. Normally the respondent employs more than 100 employees at his plant. II. THE ORGANIZATION INVOLVED Amalgamated Clothing Workers of America is a labor organiza- tion affiliated with the Committee for Industrial Organization 2 herein called the C. I. O. although it admits to membership certain employees of the respondent, the record does not disclose the eligi- bility requirements of the Amalgamated. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Prior to the last part of June 1937 there appears to have been no labor organization in the respondent's plant. At that time Mary Bagwell, an organizer for the Amalgamated, commenced, and con- tinued until April 1938, a campaign among the respondent's em- ployees to solicit their membership in the Amalgamated. One of the 2 Now the Congress of Industrial Organizations. W. E. LIPSHUTZ 1199 methods used to stimulate union interest was the distribution of union circulars in front of the respondent's plant. On one occasion in July 1937 when union circulars were being distributed in front of the plant, the respondent, speaking from the plant window in the hearing of other employees, said that the employees look upon the organizers as "some kind of varmints." The respondent thereupon came down to the sidewalk and, after receiving permission to attend a union meeting, said, "yes, I will come and spit on somebody's nose." The respondent again watched the distribution of union circulars in March 1938, and in the presence of some of his employees, said, "You see, they don't want that [circulars], they want their jobs .. . I'll run this shop as long as it is not union." On another occa- sion he said to Bagwell in the presence of some of his employees, "Why don't you give them sandwiches, give them something they want ..." On another occasion, Lipshutz came down to the sidewalk with seven or eight of his employees and said, ". . . they want you [employees] to join the union so that you can lose your job." One of the girls then said to Lipshutz that the circulars could be used for toilet paper, whereupon the latter replied that he had better toilet paper than that. Some of the employees as they passed Sims, an organizer, said that they could not take the circulars because the boss was watching. On numerous occasions between June 1937 and April 1938, the respondent informally addressed the employees on Fridays after work, immediately before they received their weekly wages. At one of his talks in July 1937 the respondent said that if the shop became unionized he would move away. Once he said that the employees would be working against their own advantage to try to make the plant a union shop, as there would be more work if the shop were not unionized. He also stated that the employees would be happier without the Union. The respondent made other anti-union remarks at the Friday talks, to wit, that he understood certain girls were talking about the union in the shop and that they would not be there long; that he had a happy bunch of people working and did not want them disturbed; and that it would be better for the girls to let outside matters alone and attend to their own business. He told Marcus in the presence of Brown, the forelady, that if Marcus would tell him what was going on in the union she could make more money. Many anti-union remarks were made also by the respondent's fore- lady, Brown. Brown told a group of employees in the factory at the time the union circulars were being distributed that if they did not take the circulars they would get rid of the organizers, and 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD showed the girls how to go out the back way to avoid the organizers. In the presence of several employees, she said that those employees who had joined the Amalgamated did not know what they were doing and that they had been talked into joining by the organizers. Brown asked several employees if they were members of the union. During March 1938 several of the employees first wore their union buttons and soon thereafter approximately 50 other employees of the respondent, including Forelady Brown, started to wear certain home- made cardboard buttons, ribbons, and paper hats bearing divers in- scriptions, for example, "I am for Monarch"; "Monarch is the only rose in my heart" ; "Monarch is good enough for me"; and "Damn the C. I. 0." Witnesses for the respondent admitted that the card- board buttons were worn and that they bore all the above-mentioned inscriptions except the expression "Damn the C. I. 0." Lipshutz, himself, wore such a badge, at least for a short time. The badge episode was clearly a demonstration against the Amalgamated, and Forelady Brown's participation therein gave it the color of official approval. The respondent in his pleadings and testimony contends that he maintained a strictly neutral position during the organizing cam- paign of the Amalgamated. He expressly denied all anti-union state- ments which we have found he made, and testified that his only ref- erence to a union in his talks to the employees was to the effect that the employees were free to join or not join the Amalgamated. The testimony of Lipshutz regarding his behavior during the organization drive of the Amalgamated is, however, contrary to the weight of the evidence. Lipshutz had remarked to Sims, an or- ganizer for the Amalgamated, that before he would permit the C. I. 0. to organize in his plant he would call in the American Fed- eration of Labor, herein called the A. F. of L. Subsequently, Lip- shutz called a meeting of his employees one day during lunch hour, introduced Mrs. Sewell, an officer of a local union affiliated with the A. F. of L., and permitted her, in his presence, to address the em- ployees. In her speech she made disparaging remarks concerning the C. I. 0. Forelady Brown also denies all of the anti-union statements which we have found were made by her. The record indicates that she was an evasive and unreliable witness as shown by her confusion and, purported ignorance when pressed on cross-examination. She was, for example, unable to explain why she wore an anti-union badge. A large number of employees testified on behalf of the respondent to the effect that they did not hear or see Lipshutz, Brown, or any other supervisory employee make any anti-union remark, or partici- pate in any anti-union activity. It was stipulated that other wit- nesses, if called, would testify to the same effect. We are not W. E. LIPSHUTZ 1201 persuaded by this evidence, especially in view of the fact that one such witness at the hearing repudiated a written statement previ- ously made by her in which she attributed an anti-union statement to the respondent, that the proffer of testimony of another, herein- before accepted by us as evidence, conflicts with her own testimony on direct examination and on cross-examination in such a manner as to be incredible, and that the testimony of several was vague and unsatisfactory on the subject of the anti-Amalgamated badges, their origin and purpose. We find, that by the foregoing anti-union statements and activi- ties of the respondent and his forelady, Brown, the respondent indi- cated to his employees his hostility toward the Amalgamated, influ- enced them against and interfered with their participation in the Amalgamated, and thereby interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged discriminatory discharges The complaint alleges that the respondent discriminated against Mae Bell Haney, Frances Drake, Ella Marcus, Hessie Toney, Edna Earle Cantrell, Lola Belle Garrett, and Loretta Williams by dis- charging and refusing to reinstate them because they had joined and assisted the Amalgamated. In his Intermediate Report, the Trial Examiner found that the evidence did not sustain the allegations of the complaint as to Toney, Haney, and Garrett, and recommended that the complaint be dismissed as to them. We agree with the Trial Examiner's conclusion that Hessie Toney and Lola Belle Garrett were laid off because of lack of work during an off season, and that Mae Bell Haney voluntarily terminated her employment with the respondent to take a position elsewhere. The Amalgamated filed no exceptions to the Intermediate Report and at the -oral argument its counsel requested, that the Intermediate Report be adopted. We shall not discuss the alleged discharges of Toney, Haney, and Gar- rett in detail. Frances Drake, Ella Marcus, Edna Earle Cantrell, and Loretta Williams were all former employees of the respondent who were reemployed by him during the first part of March 1938. All became members of the Amalgamated during that month, except Drake who had joined in August 1937. None of these employees appear to have taken an active interest in the Amalgamated. During the first week of April 1938, Marcus and Drake first wore their Amalgamated but- tons in the plant. The alleged lay-offs,and discharges occurred after Easter, in the latter part of April 1938. Cantrell and Marcus testi- fied that Brown interrogated them in the middle of March about 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their union activity and that they were thereafter unable to secure as much work as they had previously obtained ; Drake testified that after she wore her Amalgamated button she was subjected to similar treatment. All operators worked on a piece-rate basis. There is no substantial evidence that these employees obtained less than their normal share of work during that period. Drake testified that on April 20 she told Brown that she could not afford to stay around the plant for 20 cents or 40 cents a day, where- upon Brown told her to come back when things picked up. Drake received two registered letters, dated April 28 and May 18, respec- tively, requesting her to get in touch with the respondent. In response to these letters as well as on other occasions she called the plant and was told each time to call back as the work was still slack. Cantrell stated that Brown laid her off on April 22, and told her to call back, and each time she called she was told that there was no work. Upon the receipt of a registered letter by Cantrell on May 19 requesting her to communicate with the plant, she called and was told by Brown that the cutters were not working, but that she should call again. Cantrell did not call back because she had been in touch with the plant to see how the work was going and knew there was no need to call until the work picked up. Marcus testified that Brown laid her off on April 22 and told her. to call back on April 27. Marcus called back on that date and Brown told her that she should have called sooner, the work was finished. The respondent sent Marcus a registered letter dated May 18, but it tivas not delivered as Marcus had recently moved to a new address. Williams testified that Brown told her on April 27, that she was discharged because of unsatisfactory work. Williams further stated that she had spent one and one-half days without pay correcting certain alleged defective coat pockets. She did not wear an Amal- gamated button, but said that 3 weeks after joining the Amalga- mated she heard from an unidentified person that Brown knew she was a member and that from then on she received less work. Brown testified that she did not know Williams was a member of the Amal- gamated until the hearing began, and that Williams was discharged for unsatisfactory work. The record is silent as to the details of the unsatisfactory work. The respondent contends that all of the employees named in the complaint, except Williams, will be reinstated as soon as production at the factory increases. The parties stipulated that one of the respondent's slack seasons extended from May to the middle of July. Brown testified without contradiction that the slack season began after Easter ; that during April 40 girls were laid off ; and that the 7 girls named in the complaint had less seniority than all other employees except 1 girl, who had been hired prior to the lay-offs W. E. LIPSHUTZ 1203 to take the place of a sick employee. Lipshutz testified that during the month of May 75 per cent of the employees were laid off and that he retained a skeleton crew to finish a few summer garments and manufacture the new fall samples. There is no showing as to the proportion of union members in the shop before and after the lay-off. The record does not establish that the respondent selected the employees to be laid off or discharged and refused them reinstate- ment because of their union affiliation or activity. We find that Williams was discharged,for cause, that Haney quit voluntarily, and that Drake, Marcus, Toney, Cantrell, and Garrett were laid off because of a seasonal slack period. We shall accord- ingly dismiss the allegation of the complaint that the respondent discriminated in regard to the hire and tenure of employment of Haney, Drake, Marcus, Toney, Cantrell, Garrett, and Williams. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of.the respondent set forth in Section III, A, 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 sev- eral States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order him to cease and desist therefrom and to take certain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that the lay-offs of Frances Drake, Ella Marcus, Hessie Toney, Edna Earle Cantrell, and Lola Belle Garrett are temporary and were occasioned by a decrease in business and avail- able work in the plant and therefore we will not order their reinstate- ment. However, in view of the respondent's unfair labor practices as set forth in Section III, Al above, there is grave danger that the respondent will not reemploy these five individuals even if their former or substantially equivalent positions are open. In order to effectuate the policies of the Act, we will require the respondent to place Drake, Marcus, Toney, Cantrell, and Garrett, for whom work was not available at the time of the hearing, upon a preferential list for 'employment as it arises.,, e Hatter of Link Belt Company and Lodge 1604 of Amalgamated Associations.o f Iron, Steel and Tin Workers of North America, through the Steel Workers Organizing Com- mittee, affiliated with the Committee for Industrial Organization, 12 N. L. R. B./ 854. 1204 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD 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. Amalgamated Clothing Workers- of America is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not, by discharging Loretta Williams, lay- ing off Frances Drake, Ella Marcus, Hessie Toney, Edna Earle Cant- rell, and Lola Belle Garrett, and refusing to reinstate Mae Bell Haney, engaged in any unfair labor. practice within the meaning of Section 8 (3) 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 respondent, W. E. Lipshutz, doing business as The Monarch Com- pany, and his agents, successors, and assigns, shall:- 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing' his employees in the exercise of their right 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 purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Place Frances Drake, Ella Marcus, Hessie Toney, Edna Earle Cantrell, and Lola Belle Garrett on a preferential list to 'be offered employment as it arises on the basis of seniority by classification be- fore any other persons are hired, and offer them employment in accordance with such list when it becomes available; (h) Immediately post and keep posted for a period of at least sixty (60) consecutive days, in conspicuous places throughout his plant. notices stating that the respondent will cease and desist in W. E. LIPSHUTZ 1205 the manner set forth in paragraph 1 (a), and that it will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith.. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Loretta Williams, Mae Bell Haney, Frances Drake, Ella Marcus , Hessie Toney, Edna Earle Cantrell, and Lola Belle Garrett.