Evelyn Coats

In the Matter of BEN VOGEL, JOSEPH VOGEL, AND LEO VOGEL, DOING BUSINESS UNDER THE NAME OF EVELYN COATS and INTERNATIONAL LADIES GARMENT WORKERS UNION, C. I. 0.1 Case No. C-1188.-Decided April 17; 1940 Ladies Garment Manufacturing Industry-Interference, Restraint, and Co- ercion: charges of, not sustained-Company-Dominated Union: charges of, not sustained ; Board's previous approval withdrawn from stipulation signed by respondent but not by alleged company union and providing for disestablish- ment of that organ ization-Teiserson: concurring on other grounds-Complaint: dismissed. Mr. Charles M. Brooks, for the Board. Mr. F. C. Vogel, of Glendale, Calif., for the respondent. Mr. Charles Katz, of Los Angeles, Calif., and Mr. Elias Lieber- mnan, of New York City, for the I. L. G. W. U. Mr. Ralph K. Pierson and Mr. Samuel P. Block, of Compton. Calif., for the Independent. Mr. Wallace Cooper, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Ladies Garment Workers Union, C. I. 0.,1 herein called the I. L. G. W. U., the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint dated October 18, 1938, against Ben Vogel, Joseph Vogel, and Leo Vogel, doing busi- ness under the name of Evelyn Coats, Vernon, California, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices the complaint al- Now unaffiliated. 22 N.L.R B, No 90. 1066 BEN VOGEL 1067 leged in substance that the respondent (1) during May 1938 and thereafter urged its employees to support it instead of the I. L. G. W. U. and to refrain from continuing their membership in the I. L. G. W. U.; (2) during July 1938 and thereafter assisted in the formation of a labor organization among its employees known as Independent Garment Workers Union of Vernon, herein called the Independent, and at all times since said date exercised control over the Independent, dominated its administration, gave it advice, permitted it to organize on the respondent's time and property, con- tributed financial and other support to it, and permitted it to hold meetings at the home of its foreman; and (3) by the foregoing acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the I. L. G. W. U. On October 24, 1938, the re- spondent filed an answer denying generally the allegations of unfair labor practices contained in the complaint. Pursuant to notice, a hearing was held at Los Angeles, California, from December 1 through 28, 1938, before John T. Lindsay, the Trial Examiner duly designated by the Board. At the commencement of the hearing, the Trial Examiner granted a motion by the Independ- ent for permission to intervene in the proceeding. Thereupon, the Independent accepted service of the complaint and filed an answer denying the allegations contained therein of domination by the respondent. The Board, the respondent, the I. L. G. W. U., and the Independent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing on the issues was afforded all parties. At the close of the Board's case, the complaint was amended, on motion of the Board's counsel, to conform to the proof. During the course of the hearing, the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On February 9, 1939, the Trial Examiner filed his Intermediate Report, finding that the respondent had engaged in and was engag- ing in unfair labor practices within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. The Trial Examiner recommended, inter alia, that the respondent (1) cease and desist from engaging in activities constituting the unfair labor practices, (2) withdraw all recognition from the Independent as representative of its employees for the purpose of dealing with it concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, and 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other conditions of employment, and (3) completely disestablish the Independent as such representative. Copies of the Intermediate Report were duly served upon the respondent, the I. L. G. W. U., and the Independent. Thereafter the respondent and the Independ- ent filed separate exceptions to the Intermediate Report and other portions of the record. On October 19, 1939, the respondent, the I. L. G. W. U., and coun- sel for the Board entered into an agreement providing that "upon the entire record herein and upon the basis of the pleadings, tran- script, intermediate report and exceptions thereto" the Board might enter an order in effect carrying out the above recommendations of the Trial Examiner. The Independent was not a party to the agree- ment. It was approved by the Board on November 27, 1939. For the reasons stated below this approval is hereby withdrawn. The Board has reviewed the exceptions to the Intermediate Report and, save for those exceptions which are inconsistent with the find- ings, conclusions, and order set forth below, hereby sustains them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Ben Vogel, Joseph Vogel, and Leo Vogel are co-partners doing business under the name of Evelyn Coats. The respondent is engaged in the manufacture, sale, and distribution of ladies' coats and two- piece suits, with a manufacturing plant at Vernon, California, and a sales room at Los Angeles. The Vernon plant normally employs about 120 persons. During 1937 the respondent purchased raw materials in the approximate amount of $266,500, of which materials in the approxi- mate amount of $189,700 were purchased outside the State of Cali- fornia and shipped to the respondent's plant. From January 1 to October 31, 1938, inclusive, raw materials in the approximate amount of $280,000 were purchased, of which materials in the approximate amount of $234,000 were shipped to the respondent's plant from out- side the State of California. The value of the finished products manufactured by the respondent during 1937 was in the approximate amount of $571,350, of which products in the approximate amount of $117,800 were shipped out- side the State of California. From January 1 to October 31, 1938, inclusive, the respondent manufactured finished products in the ap- proximate amount of $538,600, of which products in the approximate amount of $141,300 were shipped outside the State of California. BEN VOGEL 1069 II. THE ORGANIZATIONS INVOLVED International Ladies Garment Workers Union is a labor organi- zation admitting to membership production employees of the respond- ent, as well as those employed generally in the ladies' garment industry. Independent Garment Workers Union of Vernon is an unaffiliated labor organization admitting to membership "persons working at the trade of manufacturing garments in Los Angeles County," includ- ing the respondent's employees. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In July 1937 the I. L. G. W. U. and the respondent entered into a written union shop agreement,' previously executed by the I. L. G. W. U. and approximately 57 other garment manufacturers in the Los Angeles area. This agreement runs until June 1, 1940. It pro- vided, inter alia, for a 10-per 'cent wage increase and established machinery for the settlement of grievances and disputes between the parties.3 In the spring of 1938 a situation developed in the respondent's pressing department which later gave impetus to the formation of the Independent. For several months prior to May 1938 the respond- ent had been dissatisfied with the pressing department's volume of production. This dissatisfaction was particularly with regard to Eddie Lombardi, shop chairman of the I. L. G. W. U., who, except for the head presser, was the highest paid employee in the depart- ment.' In May 1938 Lombardi and another presser, Frank Carrato, were discharged after the respondent discovered that they had been receiving work tickets from other pressers and turning them in as their own so as to falsify the records as to the amount of their 2 The respondent signed the agreement after a strike , accompanied by picketing, of ap- proximately 3 weeks ' duration . The strike commenced while Ben Vogel , manager of the plant, was confined to a hospital and was settled within 10 days after he left the hospital Eddie Lombardi , leader of the union movement, testified that prior to the strike, he de- manded of Victor Bada, the respondent 's general foreman , recognition of "a union," but made no mention of the I. L. G. W . U, and that he and a minority of the employees went out on strike when Bads replied that he would have to take the matter up with "the Boss" ( Ben Vogel ). This was the only conversation had prior to the strike between Lombardi and a representative of the respondent concerning a union 3 Provision was made for a Joint Committee composed of representatives chosen by the parties and an Impartial Chairman selected by the committee Should the committee be unable to agree on a matter, the agreement made the award thereon of the Impartial Chairman "final and binding upon the parties," subject to enforcement by the Superior Court of the State of California, Los Angeles County 4 Each presser is paid at an hourly rate . Bada testified that Lombardi never pressed more than 40 garments per week while several other pressers , earning $3 or $4 less per week than Lombai di, each pressed an aver age of 70 garments per week 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production.' The I. L. G. W. U. subsequently instituted proceedings before the Impartial Chairman,° asserting that these discharges vio- lated provisions of its contract with the respondent. On June 30, 1938, the Impartial Chairman issued an award finding that the prac- tice of exchanging work tickets prevailed among the pressers, that the entire pressing department was "rightfully" on trial, but that under the circumstances the penalty imposed on Lombardi and Carrato was "too severe and too discriminatory." The award directed that the respondent reinstate Lombardi and Carrato on July 5, 1938. Although the respondent stated to the I. L. G. W. U. upon the announcement of this decision that it would not comply therewith, Carrato was reinstated in July to his former position 7 and a money settlement was later concluded with Lombardi. B. The alleged domination of and interference with the Independent We are urged by the I. L. G. W. U. to infer that, as a consequence of the above dispute with the pressers, the respondent resolved to form the Independent, and that the origin of the Independent, as stated below, must be considered in light of that background. On the other hand, the Independent insists that many employees believed that the press- ers' conduct had created a back-log in the pressing department, thereby causing a lack of work in other departments; and that, as a result, the employees became dissatisfied with the I. L. G. W. U.'s prosecution of the pressers' case against the respondent.' The work in the respondent's plant was very slack during April, May, and Jude, 1938, and, although this period is normally slow in the respondent's business, some employees gained the impression that the pressers were responsible for the condition. Pearl Perry, chair- lady of the I. L. G. W. U.,° stated at an I. L. G. W. U. meeting that the pressers were responsible for the loss of time by the other em- ployees. Emma Weeks, assistant chairlady, testified that prior to June 30 there was considerable discussion among the employees con- cerning the dispute about the pressers. It does not appear, however, 6 There is no issue in this case of discrimination against Lombardi and Carrato, as the complaint does not allege a violation of Section 8 (3) of the Act. The Trial Examiner sustained an objection by the I. L G. W. U.'s counsel to the following question : "Did he [Lombardi] admit that he was accepting tickets from other employees in the pressing department9" In support of this objection, the Board's counsel stated that "It makes no difference whether or not these men -,N ere discharged for one thing or another , as far as this case is concerned " 8 See footnote 3, above. ' After his reinstatement, Carrato remained a member of the I. L G W. U and did not participate in the Independent movement which later developed 8 The Trial Examiner rejected several offers of proof made by the Independent as to the causes of the dissatisfaction with the I L. G. W U. on the part of certain of the Inde- pendent leaders In view of our Order, below , dismissing the complaint , we find it unnec- essary to pass upon the correctness of these rulings. 8 Lombardi 's successor. BEN VOGEL 1071 that the respondent made any statement to its employees concerning this dispute prior to the decision of the Impartial Chairman. At noon on about July 1, 1938, Amelia Greenwood and at least 3 other employees 10 asked Victor Bada, the general foreman of the plant, and Ben Vogel if they would answer a few questions for the employees after working hours that afternoon. Greenwood testified that, upon her assurance that the meeting was not to be a union meet- ing, Vogel agreed to attend. Greenwood opened the meeting, which lasted about 10 minutes, and asked Ben Vogel to explain about the trouble with the pressers. Vogel and Bada explained the reason for the discharges, as stated above. Vogel also stated that the Wagner Act was "behind the employees" and that the respondent had never discharged anyone for union activities. At noon on July 13, 1938, Greenwood, Gertrude Smith, and Nola Fondren asked Bada whether he would be at home that evening. Bada replied that he would be. He testified that he was surprised that night when about 35 employees appeared at his home and that some of them had to sit on the floor." After considerable conversation unrelated to unions, Mrs. C. 0. Stone, head button girl, asked Bada whether he thought that the employees "would do better to save so much aggra- vation, that it would be better for us, for the firm, and for all con- cerned, if we went and joined the A. F. of L.?" Bada replied that it did not make any difference whether the employees belonged to the "A. F. of L. or the C. I. 0. or the Longshoremen's Union" and that all he wanted from them was "a good day's work." Nothing else was said about unions on that occasion. During the week of July 22 a group of employees 12 headed by Greenwood formed a committee to explore the possibilities of affiliation with a labor organization other than the I. L. G. W. U. Their first decision was to make an effort to affiliate with the American Federa- tion of Labor and, during that week, they had several conversations in that regard with representatives of United Garment Workers Union of America. The United Garment Workers finally declined to issue a charter to the respondent's employees. Several members of the com- mittee testified, without contradiction, that a Mr. Slater, organizer for the United Garment Workers, advised them that he saw no other course for them except the organization of an independent union and suggested that they circulate a petition among the members of their organization and file it with the Board. 10 Lillian Chandler, Gertrude Smith, and Ruth Graham ' After these employees arrived at Bada's home, Bada purchased ice cream for them from an ice-cream vendor passing along the street 12 Joe Capitano, Alex Raimondi, Gertrude Smith, Lillian Chandler, Nola Fondren, Con- getta Troncale, C. 0. Stone, and Mrs C. 0 Stone. Mrs. Stone was head button girl, work- ing with 2 other girls Soon after the inception of the committee , she became ill and was absent from the plant for about 6 weeks. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the evening of July 21 the committee drafted a petition re- questing the Board to certify the Independent as bargaining repre- sentative of the respondent's employees. Following working hours on July 22, 4 committee members 13 gave out to employees leaving the plant invitations to a meeting that evening at the home of Mrs. Jenkins, an employee.14 These invitations made no mention of the purpose of the meeting. Upon calling the meeting to order and during the course of the meeting, Greenwood stated that the I. L. G. W. U. dues were too high, that many employees were dissatisfied because the I. L. G. W. U. had not done anything for them, that she had unsuccessfully tried to get an A. F. of L. charter, and that the employees could belong to both organizations if they were will- ing to pay dues to both. During the course of the meeting an em- ployee asked Greenwood whether the respondent was behind the independent movement. Several witnesses testified that before Greenwood could answer this question, Mary Hartsfield, a non- supervisory employee, said, "Yes, they are" and that Greenwood in- terrupted, saying, "You can't tell them that yet." 15 Hartsfield de- nied making the statement attributed to her and Greenwood testified that in reply to the question she said, "We are not having anything to do with a company union. We want an independent union in the shop where we . . . can have a word to say, where we don't have to have an outside bargaining agent . . ." We find it un- necessary to resolve this conflict of testimony since Hartsfield's state- ment, if made, could not, under the circumstances, be used to estab- lish a link between the Independent and the respondent.'° On July 25 the committee took the Independent petition to the Regional Office of the Board and offered to file it, but was told to present it first to Ben Vogel and if he "turns you down come back . . . and file it." The Committee saw Vogel later that day and informed him that a majority of the employees had signed a peti- tion designating the Independent as their representative and that the Regional Office had directed them to present the petition to him. Vogel informed the committee that he had a contract with the I. L. G. W. U. and could do nothing about recognizing the Independent, but would "abide by the law." The committee filed the petition with the Regional Office that afternoon. The respondent still recognizes 13 Chandler, Fondren, Troncale , and Smith "It appears that these employees left their work 15 minutes before quitting time in order to give out these invitations. There is no showing that Bada or the Vogels were aware of this until afterwards "Another Board witness, Grace Vaiana, testified that Greenwood said, "well, we can't tell you just now. You have to take us on faith." 11 There is no indication in the record that Hartsfield 's alleged statement was called to the respondent 's attention. BEN VOGEL 1073 the I. L. G. W. U. as the representative of its employees and has not given recognition to the Independent. During the period of the above activities in behalf of the Inde- pendent, it appears that the members of the Independent committee, especially Greenwood, were away from the plant on several occasions during working hours. The evidence indicates that, at least after the petition was presented to Ben Vogel, Bada knew that these em- ployees were engaged in organizing the Independent when they left the plant during working hours. It also appears that, except for Capitano, none was paid for time lost from work on account of union activities.- Capitano, an employee in the cutting department, is paid an annual wage. It is clear that the respondent's established policy is not to make deductions from a cutter's wages because of absence from the plant. In view of all the facts, we do not attach particular significance to the respondent's failure to make a deduc- tion from Capitano's regular wages. Subsequent to the organization of the Independent, the I. L. G. W. U. gave the respondent notice that Greenwood, president of the Independent, had been expelled from membership in the I. L. G. W. U. and requested that Greenwood be discharged from her em- ployment in accordance with the provisions of the union shop agree- ment. This the respondent declined to do, stating that the question concerning representation of its employees was pending before the Board on the Independent's petition and that under the circum- stances it would not discharge anyone for union activities. There- upon, the I. L. G. W. U. carried the controversy to the Impartial Chairman. On September 9, 1938, the Impartial Chairman, issued an award, directing that the respondent, within 48 hours, "release Amelia Greenwood from further employment." The respondent on'Septem- ber 12, 1938, filed exceptions to the award, asserting, inter alia, that no controversy existed between it and its employees since (1) there was a controversy between "employees and the Union" which in "no way involves the employer," and (2) the Board's jurisdiction had been invoked to decide the question concerning representation of its employees, and the discharge of Greenwood might later be found by the Board to be an unfair labor practice. On November 17, 1938, the Superior Court of the State of California, Los Angeles County, confirmed the award of the Impartial Chairman. On November 30, 1938, the respondent appealed this decision to the Supreme Court of California. This appeal had not been acted upon at the time of the hearing herein. The respondent asserts that its legal obligation to discharge Greenwood rested upon a construction by the California 11 These employees , except Capitano , are paid on an hourly basis and the respondent pursues a liberal policy of granting employees time off 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD courts of the contract in the' light of surrounding conditions. We cannot conclude, under all the circumstances, that the respondent acted to secure a determination of its legal obligations in order to discriminate against the I. L. G. W. U. and favor the Independent. The I. L: G. W. U. asserts that the respondent has discriminated against .its members in the finishing department."' During the fall of 1938, 5 I. L. G. W. U. members and 1 Independent member em- ployed in the finishing department were laid off for 1 day, whereas the other employees 19 • in the department worked continuously. Shortly afterwards, all finishing-department employees were laid off for a 2-hour period and at least 3 members of the Independent were paid for this time off, whereas members of the I. L. G. W. U. were not paid.20 Two of the employees 21 allegedly discriminated against had been reprimanded by Bada several times for talking too much and it became necessary to change their seats. No similar complaint is made as to any other department and it further appears that no complaint was ever registered with the respondent prior to the hear- ing concerning this alleged discrimination against employees in the finishing department. We accordingly find that the respondent has not discriminated against employees in the finishing department. On the basis of the entire record, we find that the respondent has not dominated or interfered with the formation or administration of the Independent or contributed support to it. As stated above, the respondent has agreed that the Board might, upon the basis of the entire record, enter an order requiring it to withdraw all recog- nition from and disestablish the Independent as the bargaining rep- resentative of its employees. This agreement contains no factual admissions as to alleged unfair labor practices by the respondent, and the Independent was not a party to it. Since the evidence does not support entry of the order agreed to by the respondent, we with- draw our approval of the agreement. We shall order that the com- plaint herein be dismissed. The concurring opinion herein takes the position that the complaint should not have been issued since the I. L. G. W. U. had a closed-shop contract and had resorted to the arbitration of disputes with the re- spondent, including that as to Greenwood. This dispute was, how- ever, only one of many issues raised by the complaint; the most impor- tant of which was whether or not the respondent was seeking to under- mine the I. L. G. W. U. by the clandestine establishment of a rival, company-dominated, organization. If in fact the respondent had em- barked on such a program, it would have constituted not only a clear 1S There are 12 employees in this department. 19 Apparently members of the Independent. It had previously been customary to pay employees for lav-offs of this sort. 21 Mary Cassano and Mary Rossi. BEN VOGEL 1075 repudiation of the contract with the I. L. G. W . U. but also an unfair labor practice of a sort which the Board in the discharge of its duty under the Act could not have ignored. The fact that the Trial Exam- iner, after fully considering the evidence, concluded that the respond- ent had in fact set out to destroy the I . L. G. W. U. by the formation and support of a rival organization would indicate that there was at least reasonable basis for the issuance of the complaint . In reaching a conclusion different from that of the Trial Examiner, we do not mean to imply that his conclusion was plainly wrong. Rather, it is our decision that the evidence, while it raises a suspicion that the re- spondent was instrumental in the growth of the Independent, still falls short of supporting the allegations of the complaint. Under these circumstances, it is plain that the assertion in the concurring opinion that no complaint ever should have been issued is no more justified in this case than it would be in any case where, upon consideration, the Board concludes that evidence adduced at a hearing is insufficient to sustain the allegations of a given complaint. 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. International Ladies Garment Workers Union and Independent Garment Workers Union of Vernon are labor organizations 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. 3. The respondent has not engaged in and is not engaging in any unfair labor practices within the meaning of Section 8 (1) and (2) 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. MR. WILLIAM M. LEISERSON , concurring: The International Ladies Garment Workers Union, which filed the charges in this case, has a closed-shop contract with the respondent. The matters in dispute were referred to an arbitrator as provided in the contract and decided by him. The union is now seeking enforce- ment of one of his decisions through court procedure in California. These facts were known at the time the charges were filed. The com- plaint should therefore not have been issued and should now be dismissed.