Gloray Knitting Mills

National Labor Relations Board - Board Decisions

Jan 20, 1940

19 N.L.R.B. 712 (N.L.R.B. 1940)

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.