Biltwell Umbrella Co.

In the Matter of SAMUEL EPSTEIN AND LEO BIRNBAUM , DOING BUSINESS UNDER THE NAME AND STYLE OF BILTWELL UMBRELLA COMPANY and TEXTILE WORKERS UNION OF AMERICA,' LOCAL No. 215, AFFILIATED WITH THE C. 1. 0. Case No. C-1315.-Decided January 5, 1940 Umbrella Manufacturing Industry-Settlement : stipulation providing for com- pliance with the Act, including back pay in specified amount-Order : entered on stipulation. Mr. Richard J. Hickey, for the Board. Benjamin, Galton and Robbins , by Mr. Melvin Robbins, and Mr. David Katz, of New York City, for the respondents. Mr. Alfred Udoff, of New York City, for the Union. Miss Marcia Hertzmarlc, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Textile Workers Union of America, herein called the Union, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated February 11, 1939, against Samuel Epstein and Leo Birnbaum, doing business under the name and style of Biltwell Umbrella Company, New York City, herein called the respondents, alleging that the re- spondents had engaged in and were engaging in unfair labor practices afFectixlg 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. Copies of the complaint and notices of hearing thereon were duly served upon the respondents and upon the Union. Concerning the unfair labor practices, the complaint alleged, in substance, that on or about July 1, 1938, and at all times thereafter 'The complaint was filed by Textile Workers Organizing Committee. By order of the Board dated November 14, 1939, the designation was changed to Textile Workers Union of America. 19 N. L. R. B., No. 10. 30 BILTWELL UMBRELLA COMPANY 31 the respondents refused to bargain collectively with the Union as the duly authorized representative of their employees within an. appro- priate unit; that on or about October 17, 1938, the respondents' em- ployees went on strike because of the unfair labor practices of the respondents; that on or about January 1, 1939, the respondents re- moved their operations from their plant in New York City to Secaucus, New Jersey, and thereby locked out certain named employees; and that the respondents, by their officers and agents, urged, persuaded, and warned their employees to refrain from becoming or remaining members of the Union. On February 16, 1939, the respondents filed their answer to the complaint denying. that they had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held from April 17 to 26, 1939, at New York City, before William Seagle, 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 witnesses, and to introduce evidence bearing upon the issues was afforded all parties. The Union and the respondents filed briefs with the Trial Examiner. On June 24, 1939, the Trial Examiner filed his Intermediate Report, finding that the respondents had engaged in and were engaging in unfair labor practices as alleged in the complaint. He recommended that the respondents cease and desist from the unfair labor practices, that in the event the respondents resume operations in New York City they offer reinstatement to certain employees found to have been locked out, and in the meantime bargain with the Union as to the feasibility of resuming operations in New York City, and that the respondents give back pay to certain employees. The Union and the respondents thereafter filed exceptions to the Intermediate Report and the Union filed a brief with the Board. On September 27, 1939, the respondents and counsel for the Board entered into a stipulation in settlement of the case. This stipulation provides as follows : STIPULATION Charges having been filed with Elinore M. Herrick, Regional Director of the National Labor Relations Board for the Second Region, by the Textile Workers Organizing Committee on Oc- tober 19, 1938, and amended on February 6, 1939, alleging that the respondents, Samuel Epstein and Leo Birnbaum, co-partners, doing business under the name and style of Biltwell Umbrella Company, had violated Section 8, subsection (1), (3) and (5) of the National Labor Relations Act, 49 Stat. 449; and complaint 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having been issued and served on February 11, 1939, and hearing having been held before a duly authorized agent of the National Labor Relations Board at New York, N. Y., from April 17, 1939 to April 26, 1939; and Intermediate Report having been issued and served on June 24, 1939; and it being the intention of the parties to dispose of the matters which have arisen, IT IS HEREBY STIPULATED AND AGREED by and between the re- spondents, by Biltwell Umbrella Co., and Jacob Blum, attorney, National Labor Relations Board, as follows : 1. Respondents are a co-partnership. In the course and con- duct of their business the respondents purchase various materials consisting of piece goods, frames, handles, tips and threads. During the year 1938 the respondents expended in the purchase of such materials coming from points outside the State of New York, approximately $10,971, which constituted approximately 40 per cent of its total purchases for that year. The principal states from which such materials were shipped into the State of New York were Pennsylvania and New Jersey. During the year 1938 the respondents' sales of their finished product amounted to $55,128.30. Approximately 20 per cent of the sales were made and shipped to points outside of the State of New York. The principal state to which these finished prod- ucts were shipped was Pennsylvania. Shipments were made principally by trucks hired from independent trucking contractors. Respondents admit that they are engaged in interstate com- merce within the meaning of Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449. 2. The respondents waive all further or other procedure pro- vided by the National Labor Relations Act or the Rules and Regulations of the National Labor Relations Board, including the making of findings of fact and conclusions of law. 3. Upon the basis of the facts stipulated in paragraph 1 above, the pleadings heretofore filed, the record, this stipulation, and by agreement of the parties hereto, the National Labor Relations Board may enter its Order in the following form in the above- entitled case : ORDER . On the basis of this stipulation and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that respondents, their officers, agents, successors and assigns shall: 1. Cease and desist (a) From in any manner interfering with, restraining, or co- ercing its employees in the exercise of their rights to. self-organi- BILTWELL UMBRELLA COMPANY 33 zation, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act; (b) From discouraging membership in the Textile Workers Organizing Committee by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or con- dition of their employment. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Samuel Gaisner, Anna Hughes, Josephine Pradelli, Bertha Last, Sarah Simovici, Angelina Benieri, Rita Mita and Michael Romano, for any loss of pay which they may have suffered as a result of the lock out on January 13, 1939, by payment to each of them the sum of $43.75; (b) In the event that the respondents shall resume manufac- turing operations in New York City, whether as a result of nego- tiations with the Textile Workers Organizing Committee, Local No. 215, or for any other reason, offer to Samuel Gaisner, Mar- garet Lohkemper, Elizabeth O'Keefe, Josephine Pradelli, Bertha Last, Sarah Simovici, Angelina Benieri, Dorothy Weissberg, Rita Mita and Michael Romano, immediate and full reinstatement to their former positions without prejudice to their seniority or other rights and privileges and make whole the said employees for any loss of pay they may suffer by reason of any refusal on the part of the respondents to offer them reinstatement as aforesaid, by payment to each of them respectively, of a sum equal to that, which each of them would normally have earned during the period. from the resumption of operations by the respondents in New York City to the date of reinstatement, less the net earnings of, each during such period; (c) In the event that the respondents shall resume manufac- turing operations in New York City, whether as a result of nego- tiations with the Textile Workers Organizing Committee, Local No. 215, or for any other reason, upon request bargain collectively with the Textile Workers Organizing Committee, Local No. 215, as the exclusive representative of the respondents' production employees, exclusive of clerical, shipping and supervisory em- ployees, in respect to rates of pay, wages, hours of employment or other terms and conditions of employment; (d) Post immediately in conspicuous places throughout their plant and maintain for a period of sixty (6) consecutive days copies of this Order; 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith., 4. It is the understanding of the parties that in carrying out Section 2 (a) of the above Order, that the sum of $150 shall be paid to the Regional Director for the Second Region immediately upon the entry of this Order and the balance of $200 shall be paid within the period of 6 months from the entry of this Order. 5. The respondents hereby consent to the entry by the United States Circuit Court of Appeals for the appropriate circuit, upon application by the Board, of a consent decree enforcing an order of the Board in the form hereinabove set forth and hereby waive further notice of the application for such decree. 6. The entire agreement is contained within the terms of this Stipulation and there is no verbal agreement of any kind which varies, alters or adds to the Stipulation. 7. It is understood and, agreed that this Stipulation is subject to the approval of the National Labor Relations Board and shall become effective immediately upon the granting of such approval. On December 6, 1939, the Board issued its order approving the above stipulation, and making it part of the record. Upon the above stipulation and the entire record in' the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Samuel Epstein and Leo Birnbaum compose a partnership doing business under the name and style of Biltwell Umbrella Company. They are engaged in the manufacture and sale of umbrellas. Prior to January 13, 1939, their office and principal place of business was in New York City. On that date the operations of the respondents were moved to Secaucus, New Jersey. The raw materials used by the respondents are piece goods, frames, handles, tips, and threads. During the year 1938 approximately 40 per cent of the raw materials purchased by the respondents were shipped to them from outside the State of New York. During the same period the respondents' sales of finished products amounted to $55,128.30, of which amount approximately 20 per cent represented sales of products shipped to points outside the State of New York. The respondents admit that they are engaged in interstate commerce, within the meaning of the Act. We find that the above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. BILTWELL UMBRELLA COMPANY ORDER 35 Upon the basis of the above findings of fact, stipulation, and the entire record in the case, and pursuant to Section 10 (c) of the Na- tional Labor Relations Act, the National Labor Relations Board hereby orders that Samuel Epstein and Leo Birnbaum, doing business under the name and style of Biltwell Umbrella Company, and each of them, and their respective officers, agents, successors, and assigns shall : 1. Cease and. desist : (a) From in any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join or assist labor organizations, to bargain. collectively through representatives of their own choosing and to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Rela- tions Act; (b) From discouraging membership in the Textile Workers Organ- izing Committee by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Samuel Gaisner, Anna Hughes, Josephine Pradelli, Bertha Last, Sarah Simovici, Angelina Benieri, Rita Mita, and Michael Romano, for any loss of pay which they may have suffered as a result of the lock out on January 13, 1939, by payment to each of them the sum of $43.75; (b) In the event that the respondents shall resume manufacturing operations in New York City, whether as a result of negotiations with the Textile Workers Organizing Committee, Local No.. 215, or for any other reason, offer to Samuel Gaisner, Margaret Lohkemper, Elizabeth O'Keefe, Josephine Pradelli, Bertha Last, Sarah Simovici, Angelina Benieri, Dorothy Weissberg, Rita Mita, and Michael Ro-. mano, immediate and full reinstatement to their former positions without prejudice to their seniority or other rights and privileges and make whole the said employees for any loss of pay they may suffer by reason of any refusal on the part of the respondents to offer them reinstatement as aforesaid, by payment to each of them respec- tively, of a sum equal to that which each of them would normally have earned during the period from the resumption of operations by the respondents in New York City to the date of reinstatement, less the net earnings of each during such period ; 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In the event that the respondents shall resume manufacturing operations in New York City, whether as a result of negotiations with the Textile Workers Organizing Committee , Local No. 215, or for any other reason, upon request bargain collectively with the Textile Workers Organizing Committee, Loca-l No. 215, as the exclusive repre- sentative of the respondents' production employees , exclusive of cleri- cal, shipping and supervisory employees , in respect to rates of pay, wages, hours of employment or other terms and conditions of employment; (d) Post immediately in conspicuous places throughout their plant and maintain for a period of sixty (60) consecutive days copies 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 respondents have taken to comply herewith.