Block-Friedman Co., Inc.

In the Matter of BLOCK-FRIEDMAN CO., INC. and UNITED HATTERS, CAP AND MILLINERY WORKERS' INTERNATIONAL UNION, LOCAL 57 Case No. C-766.-Decided February 21, 1940 Millinery Manufacturing Industry-Interference, Restraint; and Coercion: statements discrediting union ; inquiries concerning union membership ; charges of, by participation in activities of employers' associations, dismissed because of insufficient evidence-Discrimination: discharge of one employee for union mem- bership and activity ; to discourage membership in union-Reinstatment Ordered-Back Pay: awarded. Mr. Warren Woods and Mr. L. N. D. Wells, Jr., for the Board. Mr. Emil Corenbleth, of Dallas, Tex., for the respondent. Mr. Jim Guthrie, of Dallas, Tex., for the Union. Mr. Howard S. Friedman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed on May 24, 1937, by United Hatters, Cap and Millinery Workers' International Union, Local 57, herein called the Union, the National Labor Relations Board, herein called the Board, by Edwin A. Elliott, Regional Director for the Sixteenth Region (Fort Worth, Texas) issued its complaint dated September 18,1937, against Block-Friedman Co., Inc.," Dallas, Texas, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices-within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. The complaint and accompanying notice of hearing thereon were duly served upon the respondent and the Union. On September 11, 1937, acting pursuant to Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations- Series 1, as amended, the Board ordered this case consolidated for 1 The respondent was incorrectly designated in various papers in this proceeding as. Block-Friedman Company. 20 N. L. R. B., No. 65. 625 626 DECISIONS OF NATIONAL LABOR RELATIONS BOJ1RD purposes of hearing with certain other cases involving other millinery manufacturers in Dallas, Texas 2 With respect to the unfair labor practices the complaint alleged, in substance, (1) that the respondent on or about February 4, 1937, discharged Mrs. W. M. Turner for the reason that she had joined the Union and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection;: and. (2) that the respondent by the. above acts, by inducing .:certain per- sons in _.the_ city of., Dallas, wT -exas, .to; interfere..,with, restrain, and coerce its employees in the exercise of their rights guaranteed in, Section 7 of the Act, by participating in the activities of certain organizations in Dallas in the preparation and dissemination of anti-union propaganda, and by other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of. the Act. .. , On September 28, 1937, the respondent filed a series of motions to dismiss the complaint on the grounds, (1) that it failed to show that the respondent was engaged in interstate commerce, or that. its business affects commerce within the meaning of the Act, and (2) that the complaint failed to set forth any facts showing that the discharge of Mrs. W. M. Turner was in violation of,. the Act and was so general, vague, and indefinite, that the respondent had no opportunity to prepare a defense. The respondent also filed a mo- tion to strike that portion of the complaint which alleged that it had engaged with other persons and associations in interfering with the rights of, its employees guaranteed by the Act on the grounds that the complaint did not conform to the charge. Subject to its. motion to dismiss, the respondent at the same time filed its answer- denying that it had committed any unfair labor practices as defined- by the Act. Pursuant to notice, a hearing was held in Dallas, -Texas, on-Sep- tember 30, November 1, 2,. 3, and 15,1937, before William H. Griffin,- the Trial Examiner duly, designated by the Board. * The Board, the respondent, and the Union were represented by counsel and all par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. At the commencement of the hearing on September 30, 1937, the charges and pleadings in each of the consolidated cases were intro- ' The following . cases were included in the Order of Consolidation : Fox-Coffey-Edge. Millinery Company , Inc., XVI-R-50 (R-767) and XVI-C-75 .(C-783) ; Goldstein Hat Manufacturing Company, XVI-C-77 and XVI-R-51 (R-349) ; M. Bierner & Son, XVI-: C-122 (C-767) ; Em-Bee Hat Mfg. Co., XVI-C-74; and Gold -Claire Hat Manufacturing-, Company, XVI-C-149. Separate disposition was made of each of these cases. 3 The name of the Trial Examiner was incorrectly designated as William H . Griffen In; the Order of Designation. BLOCK-FRIEDMAN COMPANY, INC. 627 : duced in- evidence.; George 'O'. ^Wilsoh= and, Enii1-'Corenbleth. appeared on behalf of the various respondents whose cases were still pending under the Order of Consolidation. Roth attorneys entered oral objections to the Order of Consolidation issued by the Board and contended that the order was improperly entered. without notice and was prejudicial to the rights of their respective clients. The - Trial Examiner overruled these objections to the Order of Consolida- tion and ruled that the record. in.each case heard under the consolida- tion order would be separate and distinct and that' both counsel were at liberty to remain at the.hearing and participate to any extent that they saw fit. We find that the respondent was in no way prejudiced in its defense by the consolidation order or by these rulings of the Trial Examiner, which are hereby affirmed. Each case was heard seriatim with leave granted to the Board's attorney to introduce in any case evidence which had been presented in any other of the consolidated cases and with leave to counsel for the respective re- spondents to cross-examine - witnesses testifying to such evidence so introduced: At the opening of the separate hearing in this case, the respond- ent appeared specially to urge its written motion to dismiss the com- plaint for lack of jurisdiction. ' Ruling was reserved on this motion and it was subsequently denied by the Trial-Examiner in his Inter- mediate Report. At the hearing the Trial Examiner overruled the written motions of the respondent predicated upon the alleged vague- ness of the complaint and the variance between the charge and the complaint,4 and ruled that if the respondent made any claim of surprise or prejudice during the course of the hearing he would take the necessary steps to see that the respondent was not prejudiced.5 During the course of the hearing the Trial Examiner made several rulings on other motions and objections to the admission of evi- dence.6 We have.. reviewed all such rulings and find that no preju- dicial errors were committed. The rulings are hereby affirmed. 4 The respondent 's motion to strike portions of the complaint on the ground that they did not conform to the charge and its subsequent objections made during the course of the hearing to certain evidence are apparently based upon the theory that the complaint and the proof introduced in support thereof are strictly limited to matters specifically set forth in the charges. In this the respondent is in error . The function of the charge is to call the attention of the Board to the fact that certain unfair labor practices are alleged to have been committed . It is not essential that the charge describe the alleged unfair labor practices with the same particularly as the complaint. 5 The respondent did not claim surprise in connection with any of the Issues tried at the hearing. 6 Counsel for the respondent objected to the reintroduction of testimony of Michael Bierner in another of the consolidated cases by'reading it into the record _in this case. He claimed that this Interfered with his right to cross-examination. The Trial Examiner granted to counsel for the respondent the right to request that the Board call this witness in person for cross-examination . Subsequently , counsel for the respondent was given, an opportunity to examine this testimony of Michael Bierner and determine whether or not he desired to cross-examine him. The Board also offered to allow the respondent to 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 11, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all the parties. The Trial Examiner 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 and recommended that the respondent cease and desist therefrom and take certain specified action, including an offer to reinstate with back pay the employee found to have been discriminatorily dis- charged. On July 25, 1938, exceptions to the Intermediate Report were Filed by the respondent. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on September 20, 1938, at which the respondent was represented by counsel and participated in the argument. The Union filed no exceptions to the Intermediate Report, nor did it avail itself of the opportunity to present oral argument. Neither the Union nor the respondent submitted a brief. In his Intermediate Report the Trial Examiner denied certain motions upon which he had not ruled during the hearing. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. His rulings are hereby affirmed. The Board has considered the exceptions of the respondent and the argument thereupon and finds the exceptions, save as consistent with the findings, conclusions of law, and order set forth below, to be with- out merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS.OF THE RESPONDENT The respondent, a Texas corporation chartered in 1931 or 1932, is engaged in the manufacture and sale of ladies' hats and millinery in Dallas, Texas. The principal raw materials used by the respondent are felt, straw, straw braids, crepes, and satins. In the first 8 months of 1937 the respondent purchased raw materials valued at $30,000 to $35,000. All except $2,000 to $3,500 of these were obtained outside of the State of Texas. For the first 8 months of 1937 the respondent's sales amounted to between $50,000 and $60,000. During the same period between $20,000 and $25,000 worth of goods sold were shipped outside of the State of Texas. cross-examine C. A. Jay, whose testimony from another of the consolidated cases was rein- troduced. Counsel for the respondent did not avail himself of either of these opportunities to cross-examine these witnesses. The Trial Examiner properly permitted the Introduc- tion of this testimony. BLOCK-FRIEDMAN COMPANY, INC. 629 The respondent' `e'mploys approximately 25 persons. Its capital stock is entirely owned, except for a nominal share, by Irving Fried- man, its president, and Frank Block, its secretary-treasurer. These two officers have complete control over its operations. II. THE ORGANIZATION INVOLVED Local 57, a subsidiary of United Hatters, Cap and Millinery Workers' International Union, which is affiliated with the American Federation of Labor, is a labor organization. It was chartered as a local union of United Hatters, Cap and Millinery Workers' Interna- tional Union on September 8, 1936. The Union admits to its member- ship employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Sometime in 1935 a meeting was held in Dallas by an organizer for United Hatters, Cap and Millinery Workers' International Union, but the Union did not begin active organizational efforts in Dallas until the summer of 1936. - 1. The activities of the respondent Mrs. Turner, one of the respondent's employees, attended the meet- ing held by the union organizer in 1935 and was subsequently ques- tioned by Friedman concerning what took place. He stated to her that if a union came to Dallas he would discharge all his female em- ployees and hire men. The respondent became aware of the organizational activity prac- tically as soon as the Union's active campaign was initiated. Mrs. Robberson, a machine operator, testified that in the fall of 1936, Mrs. Humphries, the union organizer, began making calls upon her at her home in an effort to get her to join the Union. Mrs. Robberson in- fornmed both of the respondent's officers of these visits. Sometime in November or December 1936, Mrs. Robberson in Mrs. Turner's presence reported to Friedman that Mrs. Humphries had visited her. Friedman said, "It is just a bunch of baloney. There is nothing to it. A good worker doesn't need a union." About the middle of January 1937, Mrs. Robberson informed Friedman that the organizer had called upon her again and that she did not want her to continue to call. Friedman then asked Mrs. Turner, who was working near Mrs. Robberson, why the organizer no longer visited her, indicating that he knew that she had joined the Union. He said, "Don't think you can't lose your job because you belong to the union- 283031-41-vol. 20-41 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because I have belonged to the union and I lost my job." Friedman denied these statements. While Mrs. Robberson claimed that the Union was not discussed by Friedman in her presense she admitted that she ,had reported to him the visits of the union organizer. Since Mrs. Robberson admittedly complained of the organizer's visits and since Friedman stated in the course of his testimony that he had been an active member of a union in New York and had twice been dis- charged on that account, which is corroborative of Mrs. Turner's version of the conversation , we find that Friedman made the state- ments attributed to him by Mrs. Turner. We find that by making statements disparaging the Union and' by inquiring concerning the union membership of its employees , the re- spondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Participation by the respondent in employer's associations The complaint alleges, in substance, that the respondent, by induc- ing certain persons in the city of Dallas to interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed by the Act, and by participating in the activities of the Dallas Millinery Council, the Dallas Open Shop Association, and the Dallas Chamber of Commerce, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The evidence is insufficient to support these allegations and they will be dismissed. 3. The discharge of Mrs. W. M. Turner Mrs. W. M. Turner was hired by the respondent in 1933 and worked as a machine operator until February 1937. Her duties consisted of working with a sewing machine sewing sweat bands into hats. Prior to her employment by the respondent she had worked as a machine operator for more than 7 years including a period with the New York Hat Company where Friedman, the respondent's president, was her foreman. She and Mrs. Robberson, whose employment with the re- spondent began only a short time after Mrs. Turner's, were the only machine operators regularly employed by the respondent. During the dull season when there was not enough work for both operators, they divided the work, each working alone for a few days at a time. The respondent admitted the satisfactory quality of Mrs. Turner's workmanship and there is no issue raised in respect to that. Mrs. Turner joined the Union on November 9, 1936, and thereafter was active both in the solicitation of members among.the respondent's employees and in attendance at union meetings which were held at BLOCK-FRIEDMAN COMPANY, INC. 631 the home of the organizer. She tried without success on many occa- sions to get Mrs. Robbersoi to join the Union but she did persuade one of the respondent's trimmers to join. The respondent's knowledge of Mrs. Turner's union membership and activity in the factory is indicated by the statements of Friedman in her presence during January 1937, in which he asked why the union organizer no longer visited her and stated that she should not think that because she belonged to the Union she could not lose her job. On February 4, 1937, at the end of the working day, Block called Mrs. Turner into his office and discharged her on the ground that her services had become unsatisfactory. Mrs. Turner asked Block what the "real reason" was for her discharge to which he replied that the reason was the one he had stated. Mrs. Turner then accused him of discharging her because of her union activity, which he denied. Mrs. Turner repeated the accusation. At this juncture Block said, "Well, if you think that is the reason we will let it go at that." Block admitted that at the time of her discharge he told Mrs. Turner that she was a good operator and would have no trouble getting another job, if she wanted to work. Mrs. Turner then sought to ascertain from Friedman the reason for her. discharge. He said, "Turner, it is something that can't be helped. . . . It is not only you, but it is going to be done all over town . . . There are others, there are changes that have got to be made and we are going to make them." He also stated that he might be making a mistake and might be sorry and told her he was not going to hire anyone to take her place but was going to cut down on the force and run on a smaller scale. Mrs. Turner then threatened to make trouble for the respondent because of her discharge. While Friedman denied that he made the statements about others being let out all over town, he admitted that he said to Mrs. Turner that he might be sorry that he discharged her. Block testified that Friedman also stated that he could not help it. Under the circumstances it is apparent that Mrs. Turner's version of the statements made by the respondent's offi- cers is credible and we find that they were made substantially as indicated by her. The respondent advances a number of reasons for discharging Mrs. Turner. It asserts that she was a dissatisfied employee who was always complaining about the work and threatening to leave its em- ploy; that her attitude toward her employers was improper; and that prior to her discharge she slowed up in her work and did not produce as much as she was able to produce. We shall now examine these contentions. The respondent claims that Mrs. Turner objected to its policy of having the two operators work alternately during the dull season, 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was "always griping . . . never satisfied," "every dull season she used to kick," "would leave the place looking mad at the world," and the officers of the respondent "didn't know when she would pick up and leave us." Mrs. Turner testified that she never complained about alternating during the dull season. The respondent's officers admitted that she never said anything to them about being dissatisfied and that they had no proof that she was dissatisfied. They admitted that they never warned her that her conduct was unsatisfactory in this respect. Mrs. Turner had, in fact, worked for the respondent for 4 years prior to this during which time she always alternated during the dull sea- son. Her discharge took place at the beginning of the busy season at a time when both operators were working full time. If her dissatis- faction with sharing the work was actually the reason for this dis- charge it is probable that the respondent would have discharged her during the dull season when the other operator would have been able to handle all the work instead of, waiting until the busy season when both operators were working full time. The testimony of several of Mrs. Turner's fellow employees, including her fellow operator, estab- lishes that Mrs. Turner did not have the disagreeable disposition which the respondent's officers attributed to her. Friedman claimed that Mrs. Turner was sarcastic when she spoke to him, that she mimicked his mannerisms, and that he was advised prior to the discharge that she had repeated some uncomplimentary remarks about the employees which she attributed to him, and had expressed to other employees a dislike of working for Jews. Mrs. Turner denied these actions but the weight of the evidence establishes that they occurred. However, Friedman admitted that he had known of this conduct and tolerated it for a long time prior to her discharge, and that he had never warned her that her conduct was unsatisfac- tory. Moreover, he did not mention these matters to her at the time of her discharge. Under all the circumstances we are not persuaded that these considerations were the cause of Mrs. Turner's discharge. The respondent claimed that during the dull season in January 1937, Mrs. Turner was not producing enough work and was deliber- ately slowing down her production so that Block, who was in charge of the factory at the time, found it necessary to stand over her in order to get her to turn out the work. Friedman stated that when he came back to Dallas Block told him of these occurrences and that they then decided to discharge her before the busy season began. However, it was admitted that Friedman had returned to Dallas more than 2 weeks prior to the time of her discharge and yet she -was retained for those 2 weeks of the busy season.? Despite the respond- ' That it was the busy season is established by the fact that both operators were working during the 2 weeks prior to Dirs . Turner's discharge. BLOCK-FRIEDMAN COMPANY, INC.. 633 ent's claim that Mrs. Turner had been slowing clown production she was given overtime work during the week prior to her discharge in preference to her fellow operator . Under such circumstances little credence can be placed in the respondent 's assertion that Mrs. Turner was discharged because she was not producing enough work. Mrs. Turner was a. satisfactory and experienced worker over a period of years. All the evidence indicates that she was the sole employee in the respondent 's factory who was active in behalf of the Union. Her union membership was known to the respondent 's officers, and in January 1937 occasioned Friedman's gratuitous warning to the effect that her union membership did not mean that she could not lose her job. Upon all the evidence we find that the respondent discharged Mrs. W. M. Turner on February 4, 1937, because of her union membership and activities, thereby discriminating against her in regard to hire and tenure of employment'and discouraging membership in a labor organization . We further find that by such acts the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of her discharge Mrs. Turner was earning $22.50 a week salary plus additional pay for overtime. She obtained other employment at a lower rate of pay a short time after her discharge and indicated her desire for reinstatement in the employ of the re- spondent. Between the date of her discharge and the hearing she earned approximately $582. IV. TILE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III 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 Having found that the respondent has engaged in. certain unfair labor practices , we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We will require the respondent to offer immediate and full rein- statement to Mrs. W. M. Turner without prejudice to her seniority or other rights and privileges, and further, to make her whole for any loss of pay suffered by reason of her discharge by payment to her of a sum of money equal to that which she normally would have earned as 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- wages from the date of her discharge to the date of the offer of rein- statement, less her net earnings 8 during said period. 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. United Hatters, Cap and Millinery Workers' International Union, Local 57, is a labor organization, within the meaning of Sec- tion 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Mrs. W. M. Turner, thereby discouraging membership in United Hatters, Cap and Millinery Workers' International Union, Local 57, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. 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. 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 respondent, Block-Friedman Co., Inc., Dallas, Texas, and its officers,. agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Hatters, Cap and Milli- nery Workers' International Union, Local 57, or any other labor or- ganization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment be- cause of membership in or activity in behalf of United Hatters, Cap $ 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 his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or other 'government or governments which supplied the funds for said work -relief projects. BLOCK-FRIEDMAN COMPANY, INC. 635 and Millinery Workers' International Union, Local 57, or any other labor organization; (b) In any other 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 activities for the purposes of collective bargaining or 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) Offer to Mrs. W. M. Turner immediate and full reinstatement to her former position without prejudice to her seniority or other rights and privileges; (b) Make whole Mrs. W. M. Turner for any losses of pay she may have suffered by her discharge by payment to her of a sum of money equal to that which she would normally have earned as wages during the period from the date of such discharge to the date of the offer of reinstatement, less her net earnings during such period; deducting, however, from the amount otherwise due to her, monies received by the said employee 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 or governments which supplied the funds for said work-relief projects; (c) Post immediately in conspicuous places throughout its factory, and maintain for a period of at least sixty (60) consecutive days from the date of said posting, notices to its employees stating that the respondent will cease and desist in the manner set forth in 1 (a) and (b), that it will take the affirmative action set forth in 2 (a) and (b) of this Order, that its employees are free to become or remain members of United Hatters, Cap and Millinery Workers' Interna- tional Union, Local 57, and that it will not discriminate against any employee because of membership or activity in that organization; and (d) Notify the Regional Director for the Sixteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint against the respond- ent be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act, by inducing certain 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD persons in the city of Dallas to interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed by the Act, and by participating in the activities of the Dallas Millinery Council, the Dallas Open Shop Association, and the Dallas Chamber of Commerce. Mr. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.