Biltwell Umbrella Co.

National Labor Relations Board - Board Decisions

Jan 5, 1940

19 N.L.R.B. 30 (N.L.R.B. 1940)

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.