Gloray Knitting Mills

In the Matter of J. DUNITZ , DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF GLORAY KNITTING MILLS and JOINT COUNCIL OF KNIT GOODS WORKERS UNION, INTERNATIONAL LADIES GARMENT WORKERS UNION, LOCAL #155 Case No. C-1301.-Decided January. 20, 1940 Knitted Goods Manufacturing Industry-Compromise Agreement : between Field Examiner for Board and the respondent ; although containing no express provision charges thereby settled, given effect to as a settlement in order to effectuate the policies of the Act, upon performance by the respondent , who was not found to have engaged thereafter in unfair labor practices-Complaint: dismissed. Mr. George Rose, for the Board. Townsend, Kindleberger d Campbell, by Mr. Howard C. Campbell, of New York City, for the respondent. Elias Lieberman, by Mr. Nathaniel H. Janes, of New York City, for the Union. Mr. Milton E. Harris, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by Joint Council of Knitgoods Workers Union, International Ladies' Garment Workers Union, Local No. 155, herein. called the Union,' the National Labor Relations Board, herein called the Board, by its Regional Director for 'the Second Region (New York City); issued its complaint, dated February 23, 1939, against J. Dunitz, doing business under the firm name and style of Gloray Knitting Mills, Robesonia, Pennsylvania, herein called the respondent,2 alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) I The Union was incorrectly designated in some of the formal pleadings. z The respondent's name was misspelled both in the caption and in the complaint, but the spelling was corrected by amendment at the hearing. 19 N. L. R. B., No. 77. 712 GLORAY KNITTING MILLS 713 of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint, containing a notice of hearing, was duly served upon the respondent and upon the Union. With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent (1) on January 1, 1938, and at all times thereafter, refused to bargain collectively with the Union, as the exclusive representative of all the employees at his Brooklyn plant, which constitutes an appropriate unit; (2) on or about July 14, 1938, discriminatorily locked out, and at all times thereafter re- fused to reinstate, the employees at the said plant by removing his operations to a plant located at Robesonia, Pennsylvania; (3) on or about July 31, 1938, discriminatorily discharged, and at all times thereafter refused to reinstate, four named employees at the latter plant; 3 and (4) interfered with, restrained, and coerced employees at both plants in the exercise of the rights guaranteed in Section 7 of the Act, by the foregoing and other acts. Thereafter, the respondent filed his answer, in which he denied that he had engaged in the unfair labor practices alleged in the com- plaint, and affirmatively asserted that such allegations were settled on August 15, 1938, by an agreement made with the Board, and by the performance of his undertakings therein. Pursuant to notice, a hearing was held on March 27, 29, 30, and 31, 1939, at New York City, before Martin Raphael, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel in the hearing, and participated therein 4 Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded to all parties. At the close of the hearing, the respondent moved to dismiss the complaint on the ground that the agreement of August 15, 1938, hereinafter fully described, had been substantially performed. The Trial Examiner reserved decision on this motion. On June 2, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served on all parties.' In his Intermediate Report, the Trial Examiner denied the respondent's motion to dis- miss the complaint based upon the settlement. agreement, found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1), (3), and (5), and recommended that he s Anthony Alesi, Liborlo ( or Barney ) Alesi, Sam Friscia, and Salvatore (or Sam) Varvaro (or Vavaro). In the complaint three of the four employees are incorrectly designated as Tony Alesi, Barbet Alesi , and Sam Barbara, respectively ; but such desig- nations were amended at the hearing . The designation of Sam Friscia is correct. 4 The Union's counsel was not present after the first day of the hearing. In the Report , all parties were notified that they might request the Board, within 10 days, for the privilege of filing briefs or of presenting oral argument. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cease and desist therefrom and take ° certain specified ° affirmative action. The respondent thereafter filed exceptions to the Intermediates Report and other parts of the record, and therein excepted, inter alia, to the ruling of the Trial Examiner on the above-mentioned motion to dismiss. The Union did not file exceptions. Neither party, re, quested the Board for permission to file -briefs or to present- oral argument. For reasons hereinafter discussed in Section III, the ruling of tha Trial Examiner on the respondent's motion to dismiss hereinabove described is hereby reversed, and the complaint will be dismissed. It is therefore unnecessary for us to consider any of the respondent's other exceptions. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 6 The respondent, an individual, had his principal office, place of business, and manufacturing plant from 1929 to July 14, 1938, at Brooklyn, New York, where he was engaged in the manufacture, sale, and distribution of knitted outerwear, principally sweaters, under the name and style of Gloray Knitting Mills. Since July 17, 1938, the respondent has had his principal office, place of business, and manu- facturing plant at Robesonia, Berks County, Pennsylvania, where he has been similarly engaged. During the period from July 17 to December 31, 1938, approxi- mately 60 per cent of the $140,000 worth of raw materials used by the respondent were transported to his said Robesonia plant from sources located outside the State of Pennsylvania; and about 90 per cent of the respondent's $180,000 worth of finished products were transported from his said Robesonia plant to destinations located outside the State of Pennsylvania. The respondent employs approximately 90 persons. II. THE ORGANIZATION INVOLVED Joint Council of Knitgoods Workers Union, International Ladies' Garment Workers Union, Local No. 155, is a labor organization, ad- mitting to membership the production employees at the respondent's said Brooklyn plant, and also all other employees engaged in the 6 The findings in this section are largely based on a stipulation , between the respondent and the Board. GLORAY KNITTING MILLS 715 manufacture of various types of garments within the metropolitan area of New York City.7 III. THE ALLEGED UNFAIR LABOR PRACTICES On or shortly after August 10, 1938, the respondent received a letter from the Board, signed by Wallace Miller as Examiner, advising him that the Union charged him with engaging in unfair labor practices under Section 8 (1), (3), and (5) of the Act, by moving his plant to Robesonia, Pennsylvania, for the purpose of discouraging union affilia- tion and membership and in an attempt to evade collective bargain- ing, and by discharging the four employees hereinbefore named 8 be- cause of their union activity; and requesting him to attend a conference at the Regional Office for the Second Region (New York City) at 2 p. in. on the following Monday, August 15, to discuss the situation. The respondent thereupon forwarded the letter to his attorney, How- ard C. Campbell, with instructions to attend as requested. Campbell testified that, as the respondent's representative,. he at- tended the requested conference with Miller on August 15, 1938; that among the others present was Louis Nelson, the manager of the Union ; 9 that Miller asked Nelson and the other representatives of the Union present to leave the room; that after they went out, he (Campbell) and Miller discussed the employment at the Robesonia plant of those persons formerly employed at the Brooklyn plant, and arrived at an oral understanding,10 which was not fully defined at the time because Miller desired a list of the operations then engaged in at the Robesonia plant and the number of employees in each operation, but which Campbell was thereafter to put in the form of a letter ; that Miller agreed to prepare, or to have the Union prepare, applica- tion forms to be signed up by the persons formerly employed at the Brooklyn plant, pursuant to the said understanding; that Nelson and the other representative of the Union were then asked to come back into the room, and the substance of the understanding was then stated to them and was agreed to and consented to by them; that several days later, after getting the desired information from the Robesonia plant, he (Campbell) sent a letter to the Regional Office of the Board, dated August 24 and marked. to the attention of Miller, stating the terms of the understanding previously reached and incorporating the 7 The metropolitan area is defined to include all localities within a radius of 25 miles from Times Square, New York City. 8 See footnote 3, supra. ° Sam Friscia and Salvatore Varvaro were also present at , this conference, but merely as spectators. 10 Campbell gave no testimony as to the terms of this oral understanding other than stating that it was embodied in his letter of August 24, which is set forth in footnote 11, infra. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desired information; 11 that he (Campbell) thereafter received a letter from the Regional Office of the Board, dated, September 2 and'siglied by Miller, acknowledging receipt of the letter of August 24, stating in part as follows : In accordance with our agreement I am transmitting herewith 42 applications for reinstatement," and asking to be advised when the applicants were to report at the Robesonia plant so that he (Miller) could advise them in sufficient time for them to make the necessary arrangements; and that he (Campbell) then forwarded the 42 applications to the Robesonia plant. Campbell's testimony was not contradicted, nor were the terms of the understanding as stated in his letter of August 24, 1938.13 We find that the events occurred substantially as testified to by him. 11 This letter stated that the respondent : . . . offers to give employment at the Robesonia plant to any of his former employees on the following terms : Any former employee who was on the pay roll or available for work at the Clifton Place plant in Brooklyn on July 14, 1938, the date said plant was closed and discontinued , and who makes application in writing on or before December 31, 1938, for work, will be given employment at the Robesonia plant, if the operation in which the applicant was formerly employed is open and not filled by a-former employee at the said Clifton Place plant ; hours and rate of wages to be on the basis of conditions existing in plants in Robesonia engaged in the same line of business. As jobs open up, applicants are to be given at least one week's written notice to report for work and any applicant failing to report for work at the time indi- cated shall be considered as having abandoned his application. . . . The employer will not pay transportation to Robesonia or undertake to find or provide suitable living accommodations at or near Robesonia. The operations at present open and the number of employees in each are as follows, and as new operations are opened or more jobs in present operations are available up to December 31, 1938, the employer will notify the New York office of the National Labor Relations Board : Mechanic 1 Knitters 5 (etc.) 12 The application forms read as follows : (Date) GLORAY KNITTING MILLS. (Address) GENTLEMEN : In accordance with the agreement arrived at, at the office of the National Labor Relations Board, I, one of your employees, ____________, am ready to report to work. Very truly yours, As forwarded by Miller, each form was signed and the other blank was filled in with the designation of an operation at which the applicant desired to be employed. 73 See Matter of American-Hawaiian Steamship Company and National Organization Masters, Mates and Pilots of America, West Coast Local No . 90 (etc.), 6 N. L. R. B. 678, where we said at page 684 , in dismissing allegations of a refusal to bargain , within the meaning of Section 8 (5) of the Act, that the Regional Director's "failure to object to the language of the letter [received from the Steamship Company, stating that it would bargain with the representative designated by a majority of its employees eligible to vote GLORAY KNITTING MILLS 717 Moe Gordon, the production manager of the respondent's business, testified that the 42 applications were received sometime in the early part of September 1938; that 13 of the applicants were not notified to report to work because 1 had died,14 4 had previously worked at the Robesonia plant and had thereafter quit,15 and 8 had filed applica- tions which did not come within the terms of the August agreement; 18 that all the applicants except the 13 specifically named by him were thereafter duly notified to report to work, pursuant to the terms of the August agreement and Miller's letter of September 2, by sending such notices to the Regional Office, marked to the attention of Miller; and that no further applications were thereafter received. Gordon's testimony that all of the applicants except the 13 herein- before named were duly notified to report to work at the Robesonia plant was uncontradicted, and we so find. We further find that the 13 applicants not so notified were not entitled, under the terms of the August agreement, to the types of employment designated by each, and that the respondent therefore substantially performed his under- takings in the said agreement. We have previously held that we would give effect to an adjust- ment of unfair labor practices allegedly engaged in by an employer, and would refrain from considering the testimony concerning such practices, if the adjustment was participated in by an agent of the Board, and if the employer did not thereafter continue to engage in unfair labor practices.17 In the instant case, we find that the circum- at the impending election ] under the circumstances must ' be deemed to constitute assent of the Board to it." In the instant case, the Board's agent in effect admitted in his letter of September 2 that Campbell 's letter of August 24 stated the understanding correctly. 14 Rose Nathanson. 18 The four employees listed in footnote 3, supra. 16 Bella Aronowitz , Rose Catalfo , Elizabeth Chiaramonte, Fanny Conte , Sadie Gasparro, Kitty Gentile , Charles La Marca, and Joseph Di Pietra each filled in the first blank in the application form with the designation of an operation at which he was not employed at the Brooklyn plant on July 14, 1938, or his operation had been discontinued at the Robesonia plant. 17 See Matter o f Shenandoah=Dives. Mining ; Company and International Union of Mine, Mill & Smelter Workers, Local No. 26, 11 N. L. R. B. 885, where we dismissed allegations that the respondent had engaged in a discriminatory discharge , within the meaning of Section 8 ( 3) of the Act, without considering the merits , ' inasmuch as charges to that effect had previously been adjusted between the employer and the Regional Director. At page 888 we said that "it may well be that the Regional Director intended the instant agreement [adjusting the allegedly discriminatory discharge ] to be subject to acceptance by the discharged employee , .. . or approval by the Board , or both. There is, however, no evidence to that effect ." See, also, Matter of Hope Webbing Company and Textile Workers Organizing Committee of the 0. 1. 0., Local No . 111, 14 N. L. R. B. 55; Matter of Godchaux Sugars, Inc. and Sugar Mill Workers' Union, Locals No. 21177 and No. 2188, affiliated with the American Federation of Labor, 12 N. L. R. B . 568. Cf. Matter of Corinth Hosiery Mill, Inc. and American Federation of Hosiery Workers, 16 N. L. R. B., 414, where we sustained allegations that the respondent had engaged in discriminatory discharges and other acts of interference , within the meaning of Section 8 ( 1) and (3) of the Act, and refused to give effect to . a similar adjustment , inasmuch as the employer had thereafter continued to engage in unfair labor practices . Cf., also , Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee, 5 N. L. R. B. 908, at p. 911. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances under which the August agreement was made, and the respond- ent's subsequent performance of his undertakings therein, amounted to such an adjustment.18 It is apparent that the respondent relied on the agreement as a settlement of the pending 8 (1), (3), and (5) charges. In the absence of any express understanding concerning the scope of the agreement, we are of the opinion that the respondent was entitled to rely upon it as such a settlement. It now becomes material to determine whether the respondent engaged in any unfair, labor practices after the date of the agreement. The complaint does not allege that the respondent engaged in any unfair labor practices after August 15, 1938, other than a continuing refusal (1) to reinstate any of the employees he had allegedly dis- charged discriminatorily on or about July 14, 1938, (2) to bargain with the Union as their representative, and (3) to reinstate any of the four employees he had allegedly discharged discriminatorily on or about July 31, 1938.19 We find that such refusals were included in the matters adjusted at the conference of August 15, 1938. The record shows, however, that Anthony Alesi, one of the four employees alleged to have been discriminatorily discharged on or about July 31, 1938, again worked at the Robesonia plant from Monday, August 8, to Friday, August 19, 1938; that he did not thereafter return to work, but on August 25, 1938, sent a letter to the respondent stating that he had promised his wife not to return to Robesonia ; and that he admitted at the hearing that he was not discharged on August 19, but could have continued to work if he had so-desired. There is likewise no showing in the record that the respondent engaged in any other unfair labor practices subsequent to-August 15, 1938,. the date of the agreement, and we so find. Having found that the respondent did not -engage in unfair labor practices. after August 15, 1938, We shall therefore give effect to, the adjustment arranged at the conference held on that date. We shall accordingly refrain from considering the respondent's conduct prior to the said date and dismiss the complaint herein. is See , for example, Matter of Wickwire Brothers and Amalgamated Ass'n. of Iron, Steel & Tin Workers of North America, Lodge #1985; through S. W. 0. C., affiliated with the C. I. 0., 16 N. L. R. B. 316, where, although there was no express provision in the adjustment agreement for dropping the charges that the respondent had previously engaged in certain unfair labor practices, we dismissed such charges . without examining the merits , on finding that such a result should be implied from the circumstances giving rise to the agreement. "In addition , the complaint alleges, in paragraph 9 thereof, that the respondent, at both the Brooklyn and the Robesonia plants, urged, persuaded , and warned his employees to refrain from becoming or remaining members of the Union , threatened them with reprisals if they became or remained members thereof , and kept under surveillance the meetings and meeting places of the members of the Union . There is no evidence whatso- ever in the record to support these allegations. In his Intermediate Report , the Trial Examiner granted the respondent's motion to dismiss such allegations , and the Union did not file exceptions to this ruling. Under the circumstances , we find that the respondent did not engage in the said unfair labor practices subsequent to August 15, 1938. G'UORAY KNITTING MILLS 719 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. Joint Council of Knitgoods Workers Union, International Ladies' Garment Workers Union, Local No. 155, is a.labor organiza- tion, within the meaning of Section 2 (5) of the Act. 2. The operations of the respondent occur in commerce, within the meaning of Section 2 (6) 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 complaint be, and it hereby is, dismissed.