La Paree Undergarment Co., Inc.

In the Matter of LA PARES UNDERGARMENT COMPANY, INC., and INTERNATIONAL LADIES' GARMENT WORKERS' UNION, LOCAL. No. 166, C. I. O. In the Matter of LA PARES UNDERGARMENT COMPANY, INC., and FRIEDA FEITH Cases Nos. C-11I1 and C-1122, respectively .Decided November 2, 1939 Underwear Manufacturing Industry-Procedure : motion for continuance and motion to strike testimony properly denied-Interference, Restraint, and Co- ercion: anti-union speeches by director and manager of the respondent-Dis- crimination : charges of, sustained as to three persons-Reinstatement : ordered- Back Pay: awarded ; computation of : period one employee was incapacitated excluded from. Mr. Albert Ornstein, for the Board. Mr. Erwin Feldman, of New York City, for.the respondent. Isserman, Isse"nan & Kapelsolin, of Newark, N. J., by Mr. Sol D. Kapelsohn for the Union. Mr. Samuel Rothbard, of Newark, N. J., for Frieda Feith. Mr.` Edward'Sc/iemiemann, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Frieda Feith and International Ladies' Garment Workers' Union, Local No. 166, herein called the Union, the National Labor Relations Board, herein called the Board, on September 8, 1938, acting pursuant to Article II, Sec- tion 37 (b), of National Labor Relations Board Rules and Reg- ulations-Series 1, as amended, issued an order of consolidation, and on October 10, 1938, by the Regional Director for the Second Region (New York City), issued its complaints against La Paree Under- garment Company, Jersey City, New Jersey, herein called the respondent, alleging that the repondent had engaged in and was 17 N. L. R. B., No. 10. 166 LA PAREE UNDERGARMENT COMPANY, INC. 167 engaging 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, herein called the Act. Copies of the complaints, accompanied. by notices of hearing thereon, were duly served upon the respondent, Frieda Feith, and the Union. The complaints alleged in substance (1) that the respondent urged, persuaded, and warned its employees to refrain from becoming or remaining members of the Union, (2) that the respondent discharged Elsie..Gerkin and Laura Kelly because they joined and assisted the Union, and (3) that the respondent discharged Frieda Feith because she assisted the Union. On October 19, 1938, the respondent filed its answers to the complaints denying that it had engaged in the alleged unfair labor practices. By notice dated October 10, 1938, a hearing was set for October 31, 1938. By notice dated October 28, 1938, the hearing was post- poned to November 14, 1938, by notice dated November 9, 1938, the hearing was postponed indefinitely, and by notice dated November 28, 1938, the hearing was postponed to December 5, 1938. On Novem- ber 29, 1938, counsel for the respondent requested a continuance of the hearing, representing that the week of December 19, 1938, would be a satisfactory period in which to hold the hearing. Accordingly, by notice dated December 1, 1938, the' hearing was continued to December 20, 1938. On December 14, 1938, counsel for the respondent received notice that a chancery proceeding, in which lie was counsel, had been set for hearing in the State of Delaware beginning December 22. Coun- sel for the respondent took no steps at this time to avoid the threat- ened conflict between the dates set for the Board and the chancery hearings. Pursuant to notice, the Board hearing opened at Jersey City, New Jersey, on December 20, before Patrick H. McNally, the Trial Ex- aminer- duly designated by the Board. The Board, the respondent, the Union, and Frieda Feith were represented by counsel. At the commencement of the hearing the Board opened its case by calling witnesses for direct examination. The respondent participated in the hearing and cross-examined witnesses for the Board. On the morning of December 21 the hearing resumed. The Board continued direct, and the respondent cross-examination of witnesses. Following the noon recess the Trial Examiner called the hearing to order. Erwin Feldman, counsel for the respondent, did not appear, but Joseph Walker, his associate, appeared and cross-examined a Board witness. Toward the close of the afternoon session, Walker moved that the cross-examination of this witness be deemed incom- 247384-40-vol. 17-12 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plete pending the return of Feldman. The Trial Examiner denied the motion. The hearing resumed on December 22. Feldman did not appear., Walker moved that the hearing be continued until December- 23, 1938, on the grounds that Feldman was in attendance at the chancery hearing and that his presence at the Board hearing was necessary for the proper conduct of the respondent's defense. The Trial Examiner denied the motion. Walker remained in the hearing room during the morning session and took notes on the proceedings but did not otherwise participate. The Board concluded its case during the afternoon session on December 22. No witnesses were. offered for direct examination by the respondent. The Trial Examiner, accord- ingly, declared the hearing closed. • On December 23, Feldman appeared at Washington, D. C., and held a conference with the Board's Chief Trial Examiner and with Trial Examiner McNally. Following this conference, the Trial Ex- aminer notified the parties that he had reconsidered his ruling and that the hearing would reopen on December 27. The hearing was duly resumed on December 27. The Board and the respondent appeared by counsel. The Board witnesses who had not been cross-examined by the respondent were present. The Trial Examiner instructed that their direct examination be read to Feld- man to enable him to cross-examine them. Counsel for the respond- ent refused to proceed unless the direct testimony of these witnesses was stricken. The Trial Examiner, accordingly, again declared the hearing closed. On January 3, 1939, the respondent filed a motion with the Board to strike the testimony, reopen the hearing and stay the Intermediate Report. Counsel for the respondent recited by affidavit accompany- ing the motion that the Chief Trial Examiner had agreed to the striking of the testimony of Board witnesses at the conference of December 23. On January 11, 1939, the Chief Trial Examiner re- cited, in an affidavit incorporated into the record by Board order, that "he had directed the Trial Examiner to reopen the hearing to afford the respondent an opportunity to cross-examine the witnesses whose direct testimony had been heard December 22, and to put on any direct testimony Mr. Feldman cared to present in behalf of his client." On January 11, 1939, the Board denied the respondent's motion. On January 16, 1939, the Trial Examiner issued his Intermediate Report. On January 20, 1939, the respondent filed exceptions thereto, and on February 20, 1939, the respondent filed a written argument in support of its exceptions. On March 15, 1939, the Union filed written argument in support of the Intermediate Report. On LA PAREE UNDERGARMENT COMPANY, INC. 169 September 28, 1939, the . respondent and the Union appeared by counsel and presented oral argument before the Board , at Wash- ington, D. C. The respondent contends that the Trial Examiner erred in denying the continuance requested on December 22 and in refusing on Decem- ber 27 to strike the direct testimony given on December 22. We hold that the Trial Examiner . did not err in denying the re- spondent's request on December 22 for a continuance of the hearing. The Board hearing had already been continued from December 5 on request of counsel for the respondent. Moreover, on December 1, 1938, the hearing was scheduled to begin on December 20 pursuant to a representation by counsel for the respondent that the , week com- mencing December 19 would be "satisfactory". to him. Further, al- though counsel for the respondent received notice of the chancery proceeding on December 14 he made no effort to secure a continuance at this time of either the Board or the chancery hearing . _ Indeed he appeared at the Board hearing on December 20 and December 21 and still gave no indication to the Board or its agents that he would request a continuance of the .Board hearing on December 22. Not until ,December 22, after the Trial Examiner had resumed the hear- ing, did counsel for the respondent represent that his presence was required at a chancery proceeding . Because of these circumstances it is clear that the Trial Examiner by refusing to grant a continuance on December 22, did not deny the respondent a fair hearing', Since the continuance was not improperly denied , it follows, and we hold, that the Trial Examiner, by refusing to strike the testimony taken on December 22, did not deny the respondent a fair hearing. The respondent contends that the Chief Trial Examiner and the Trial Examiner agreed to strike this testimony at the conference held on December 23. It may be noted that the Chief Trial Examiner, by affidavit, and the Trial Examiner ; by his actions at the hearing of December 27, challenged the truth of the respondent's contention. While we have no doubt as to where the truth lies in this matter, we refrain from a formal resolution of the conflict as to the position taken by the Chief Trial Examiner and the Trial Examiner on De- cember 23 , since were we to assume that on that day they decided to strike the testimony of December 22, it would not follow that, by their subsequent refusal to do so, the respondent was denied a fair hearing. . A mere reversal of position by a judicial-officer does not constitute a denial of due process. The asserted determination of the examiners on December 23 to strike testimony was a reversal- of the Trial Examiner's determination on December 22 to deny -the con- i Cf. National Labor Relation Board V . American Potash and Chemical Corporation, 98 F. (2d) 488 (C. C. A. 9). 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tinuance and to admit this very testimony. Surely the respondent does not contend that on December 23 it induced the examiners to deny a fair hearing to the Union. The Trial Examiner's refusal on December 27 to strike the testimony was simply a reaffirmation of his ruling on December 22 admitting it. The respondent makes no showing that it had any greater vested right than the Union in a particular ruling of the Trial Examiner. Finally, were we to assume, contrary to fact, that the denial of continuance-and the refusal to strike were erroneous, the record would still compel the, conclusion that such asserted error did not prejudice the respondent. Although Feldman was absent on December 22 his associate, Walker, was present during the morning session and had full opportunity to observe and cross-examine the witnesses and to make motions and objections. The respondent, it is true, represents that Feldman's presence on December 22 was necessary to the proper conduct of its defense. But we find such representation without sup- port in the record. On December 21 Walker appeared on behalf of the respondent and cross-examined a Board witness in Feldman's absence. The issues in the proceeding were not so complex as to make it improbable that another attorney could satisfactorily replace Feld- man on December 22 as Walker did on December 21. Even if Feld- man's counsel were essential, the Trial Examiner afforded him full opportunity to.-employ it, for, on December 27, the Trial ,Examiner. directed that the testimony taken on December 22 be read to him so that he could cross-examine the witnesses and take any other steps which he thought proper to present his client's defense. We find that full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made other rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Trial Examiner, in his Intermediate Report, found that the respondent 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 as alleged in the complaint and recommended that the respondent cease and desist from said unfair labor practices and, affirmatively, reinstate the employees discrimina- torily discharged with back pay. The Board has considered the exceptions and argument, and save as the exceptions are consistent with the findings, conclusions, and order s"et forth'below, finds them to be without merit. LA PAREE UNDERGARMENT COMPANY, INC. 171 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a New Jersey corporation with its principal office and place of business in Jersey City, New Jersey. It is engaged in the manufacture, sale, and distribution of children's underwear and related products. The respondent employs about 300 persons. Dur- ing 1937 its purchases were valued at approximately $480,000 and its sales at more than $1 ,000,000. It obtained all of its raw materials from outside the State of New Jersey, and it shipped 95 per cent of its manufactured products to States other than New Jersey. H. THE ORGANIZATION INVOLVED International Ladies'. Garment Workers'. Union, Local No. 166, is a : labor organization which was, affiliated'-W: ith the Congress of In- dustrial Organizations, herein called the C. I. 0., at the time of the alleged unfair labor practices. It admits to membership production employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion During February, March, and April 1938, the Union began to en- roll employees of the respondent. As part of its organizing cam- paign, the Union sent letters to the respondent's employees outlining the benefits of, and soliciting membership in, the Union. Credible evidence compels the conclusion that the respondent sought to prevent its employees from becoming or remaining affiliated with the Union. In April 1938, Herman Klotz, the respondent's general manager, called a meeting of the employees and stated in substance that he dis- approved of the letters the employees had been receiving, that he hoped they would ignore the letters and "realize that this factory is better off as it is than if a union were to take charge." He stated further that he "did not want to hear any more about it." In May 1938, Feldman, who is a director of the respondent as well as its attorney, addressed the assembled employees. He stated in substance, that he had only recently become financially interested in the respondent, that he had been affiliated with an organization in Massachusetts in which the workers "were a great big happy family and didn't have to pay for their jobs, and he didn't want people in La Paree to, have to pay for theirs" It is clear and we find that by this statement Feldman sought to discredit the Union. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About the first week in June 1938, the respondent called, another meeting of its employees. Feldman again spoke. He read a letter which the respondent had received from Mayor Hague of Jersey City. The letter requested all firms to participate in a forthcoming parade or demonstration against "outsiders coming in and running the town." This, of course, was intended, and was understood, to- be a disparaging reference to the C. I. O. Feldman stated he hoped all the employees would participate because "Mayor Hague had been doing such good work for them." He repeated again, in substance, that the respondent's employees did not have to pay for their jobs. We find that the respondent, by the above acts, including the state- ments)of Klotz in April and the statements of Feldman in May and June interfered with, restrained, and coerced its 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. B. The discharges The complaint alleged, and the answer denied, that the respondent discharged Elsie Gerkin and Laura Kelly because they joined and assisted the Union, and discharged Frieda Feith because she assisted the Union. The Trial Examiner found these discharges to be dis- criminatory. I The respondent takes exception. Elsie Gerkin, felling-machine operator and second seamer, was hired in January 1936. Laura Kelly, ruffle setter, was hired on Jan- uary 2, 1935. Gerkin was discharged on May 24, reinstated on May 27, and discharged again on June 2, 1938. Kelly was also-discharged on June 2, 1938. Gerkin and Kelly, among the first employees of the respondent to join the Union, became members thereof on May 18, 1938. On May 24, 1938, Ben Handler, a foreman, stopped Gerkin at the drinking fountain in the sewing room and said, "Have you anything to do with this union talk?"" Gerkin replied affirmatively and stated that she had signed with the Union. Handler remarked that she had "put her foot in it and she had better get it out." Less than an hour after this conversation, Klotz called Gerkin into his office, and asked "What is all this talk about you having signed up with the Union and all these activities going on around you?" Gerkin admitted she had joined the Union. Thereupon Klotz said, "I am sorry, I will have to let you go. I don't want any of that talk going on around here. Punch your clock and leave." LA PAREE UNDERGARMENT COMPANY, INC. 173 Gerkin. called the union organizer the same day and informed him of her discharge. The union attorneys immediately wrote to the respondent demanding that she be reinstated. On May 26 Gerkin returned to the respondent's office for her pay envelope. Klotz asked how many times she had been at the union office, and called her a liar when she denied having been there. He told her, in substance, that he had always felt she was one of the girls he could trust, but that "if there were any further union trouble, he could thank her for it." Thereafter, on May 27, the respondent reinstated Gerkin. On June 2, Klotz again called Gerkin into his office. He told her, in substance, that she was-- discharged- because, she had continued to talk about the Union at the plant after having been warned not to do so, and had informed the other employees that the Union had compelled her reinstatement. Thereupon Gerkin left the office. Klotz then summoned Kelly to the office and accused her of "an- noying" the other employees. Although Kelly demanded proof of this accusation, Klotz simply stated that he had "had enough" of her and informed her she was discharged. The record discloses that Gerkin and Kelly were efficient employees and that the sole cause for their discharge was their union member- ship and activity. Gerkin and Kelly earned about $15 and $20 per week, respectively, prior to their discharge. Neither has had earnings subsequent to such discharge and both desire reinstatement. Frieda Feith., billing clerk and accordingly not eligible for mem- bership in the Union, was hired in January 1937 and discharged on June 10, 1938. Feith had obtained the names and addresses of some of the re- spondent's employees by circulating among them a petition for a free State university. She gave those names to the union organizer when he began to canvass the employees to become members of the Union. On June 10 the respondent discharged her. Klotz informed her that she was discharged because the names on the petition which she had circulated had "probably gotten into the hands of the union organizer." There can be no doubt that the respondent discharged Feith for rendering assistance to the Union. Feith earned $18 per week prior to her discharge. She earned $3 between June 10 and December 20, 1938. We find that the respondent, by the discharge of Elsie Gerkin on May 24 and June 2, Laura Kelly on June 2, and Frieda Feith on June 10, 1938, discriminated in regard to hire and tenure of employ- ment, thereby discouraging membership in a labor organization, and 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interfering with, restraining, and coercing its employees in the exer- cise of rights guaranteed in Section 7 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 the operations of the respondent de- scribed 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 Pursuant to Section 10 (c) of the Act, the appropriate remedy, and the one we shall order, is that the respondent cease and desist from its unfair labor practices, and, affirmatively, offer full reinstate- .nient.with back pay to Gerkin, Kelly, and Feith. With respect to Kelly, the respondent need not give her back pay from July 28, -1938, to the date when she was ready to return to work, because during that period she would not have worked, in the absence of discrimination, by reason of pregnancy. Upon the basis of the above 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, Local No. 166, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to hire and tenure of employment of Elsie Gerkin, Laura Kelly, and Frieda Feith, thereby discouraging membership in a labor organization the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3.' By interfering with, restraining, and coercing its' employees in the exercise 'of rights guaranteed in Section 7 of the Act, the re- spondent' has engaged 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 'arid conclusions of law and pursuant to Section 10 . (c) of the National Labor Relations Act, LA PAREE UNDERGARMENT COMPANY, INC. 175 the National. Labor Relations Board hereby orders that- La Paree Undergarment Company, Inc., Jersey City,. New Jersey, its officers, agents, successors and assigns shall : 1. Cease and desist from : (a) Discouraging membership in the International Ladies' Garment Workers' Union, Local No. 166, or any other labor organization, by discrimination in regard to hire and tenure and terms and conditions of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the International Ladies' Garment Workers' Union, Local No. 166, or any other labor organization, to bargain- collectively through representatives of their own choosing, and to engage in con- certed activities, for the purposes 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) Offer to Elsie Gerkin, Frieda Feith, and Laura Kelly immediate and full reinstatement to their former positions without prejudice. to their seniority and other rights and privileges; (b) Make whole Elsie Gerkin and Frieda. Feith for any losses of pay they may have suffered by reason of the respondent's discrimina- tion in regard to their hire and tenure of employment by payment to, each of them respectively of a sum of money equal to that which each would have earned as wages during the period from the date.of.such discrimination to the date of offer of reinstatement, less her net earn- jngs; if any, during said period, had the respondent not discriminated in regard to her hire and tenure of employment; deducting, however,. from the amount otherwise due to each of the said employees, monies received during said period for work performed upon Federal, State, county, municipal, or other work-relief projects and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government which supplied the funds for said work-relief projects; (c) Make whole Laura Kelly for any losses of pay she may have suffered by reason of the respondent's discrimination in regard to her hire and tenure of employment by payment to her of a sum of money equal to that which she would have earned as wages during the period from June 2, 1938, to July 28, 1938, and from the date of the removal of her disability to the date of the offer of reinstatement, less her net 2 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for her unlawful discharge and the consequent necessity of her seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It . B. 440. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earnings,3 if any, during said periods, had the respondent not dis- criminated in regard to her hire and tenure of employment; deducting, however, from the amount otherwise due to her, monies received during said period for work performed upon Federal, State, county, municipal, or other work-relief projects and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government which supplied the funds for said work-relief projects; (d) Post immediately in conspicuous places in and about its plant and maintain for a period of at least sixty (60) consecutive days, notices to its employees stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b), and that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; (e) Notify the Regional Director for the Second Region, in writing, within ten (10) days from the date of this Order what steps the-re- spondent has taken to comply herewith. 8 Ibid.