Max Ulman, Inc.

National Labor Relations Board - Board DecisionsNov 28, 1942

45 N.L.R.B. 836 (N.L.R.B. 1942)

In the Matter Of MAX ULMAN , INC. AND COUNTRY CLUB FROCKS, INC. and INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL Case No. C-0343.-Decided November 28, 1912 Jurisdiction : garment manufacturing industry. Unfair Labor Practices Collective bargaining: majority established by designation 'cards, strike-re- fusal to bargain collectively,'when position in dealing with union that unit was not appropriate was taken to evade duty to deal with designated representative of employees-strike prolonged by refusal to bargain. Remedial Orders : cease and desist unfair labor practices and bargain collec- tively; reinstatement and back pay awarded striking employees, order appli- cable to one of respondents who at time of hearing began liquidation' of its'busi- ness and was'no longer operating,'but which had not been dissolved, with reser- vation of issue as to what should constitute compliance by respondent in liquida- tion for decision upon the basis of the situation at the time of compliance. Unit Appropriate for Collective Bargaining : unit confined to cutters held appro- priate under, circumstances even though a larger unit comprising all production employees might likewise have constituted an appropriate unit DECISION AND ORDER On September 23, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondents had engaged in and were, engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take cer- tain affirmative action as set out in the copy of the Intermediate Report attached hereto. Thereafter the respondents filed exceptions to the Intermediate Report and a brief in support of the exceptions. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial 'error was committed. The rulings are hereby affirmed. , The Board has considered the Intermediate Report, the exceptions and the brief, and the entire' record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except in the respects noted below. 1. The Trial Examiner found that at the conference on September 24, 1941, the respondents and the Union came to substantial agreement with respect to the terms of a contract as set forth in the memorandum 45 N L.R B., No 127. 836' 1 MAX ULMAN, INC. 837 drafted on that occasion, but that the respondent failed to sign the agreement . The evidence does not support these findings., We, accordingly, reverse the findings of the Trial Examiner and find that on September 24, 1941, the Union submitted a written memorandum of its demands to Honig for consideration. 2. In adopting the Trial Examiner's finding that the cutters consti- tute an appropriate bargaining unit, we are not unmindful of the cases where we have reached a different result.' There, we based our finding that a unit limited to cutters was inappropriate princi- pally upon the grounds: (a) that collective bargaining in the indus- try in that locality was conducted on an industrial basis, that is to say, for all production employees, including cutters; and (b) that the Union was actively engaged in organizing the employees on an industrial basis and conceded the ultimate desirability of an indus- trial unit. In this case, however, contrary to the cases last cited, it is established that the cutters have a long history of self-organization and collective bargaining as a separate unit, in the area. In addi- tion, it appears that the Union has made no effort to organize on an industrial basis-and contends that a unit limited to' cutters is the appropriate unit. Other factors cited by the Trial Examiner like- wise distinguish this case from those where we reached a contrary result. Under substantially similar circumstances, we have pre- viously found a cutters unit to be appropriate.' 3. The record shows and the Trial Examiner found that in June 1941 the respondent Country Club began liquidation of its business and at the time of the hearing was no longer carrying on opera- tions, although the corporation had never been dissolved. Upon this state of the record the Trial Examiner recommended that a conditional order be entered against that respondent. We do not accept this recommendation and, accordingly, in order to effectuate the policies of the Act, we shall order both respondents to cease and desist from the unfair labor practices found and to take appro- priate affirmative action to remedy such unfair labor practices, re- serving the issue as to what shall constitute compliance by the respondent Country Club for decision upon the basis of the existing situation with respect to its -business operations when the question of compliance is to be determined. i Matter of Justin McCarthy, Inc and International Ladies" Garment Workers' Union, Local No 387, 36 N L R B 800; Matter of Morten-Davis Company and International Ladies' Garment Workers' Union, Local No 387, 36 N. L R B. 804, and Matter of Kohen- Ligon-Folz, Inc. and International Ladies' Garment Workers' Union, Local No. 387, 36 N. L R B. 808. 2 Matter of Lettie Lee, Inc and International Ladies' Garment Workers' Union, Cutters Local No. 84/, A. F L., 45 N. L. R B. 448. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the findings of the Board and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ents, Max U]man, Inc., and Country Club Frocks, Inc., Kingston, New York, their officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Ladies' Garment Workers' Union as the exclusive representative of the cutters at the Kingston plant, excluding supervisory employees; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right 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 Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with International Ladies' Garment Workers' Union as the exclusive representative of the cutters at the Kingston plant, excluding supervisory employees ; (b) Upon application offer to all those employees who went on strike on May 2, 1941, or thereafter, and who have not previously been reinstated, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing if necessary any persons hired after May 2, 1941, the date of the strike, and not employed on said date. If thereupon, there is not sufficient employment available, for the employees to be offered reinstatement, all available positions shall be distributed among all employees, without discrimination against any employee because of his union membership or activities, following a system of seniority or other non-discriminatory practice to such extent as has heretofore been applied in the conduct of the respondents' business. Those employees, if any, remaining after such distribution, for whom no employment is immediately avail- able, shall be placed upon a preferential list and offered employment in their former or substanitally equivalent positions as such employ- ment'becomes available and before other persons are hired for such work, in the order determined by such system of seniority or other non-discriminatory practice as had heretofore been followed by the respondents ; MAX ULMAN, INC. 839 (c) Make whole the employees specified in paragraph 2 (b), above, for any loss of pay they may suffer by reason of the respondents' refusal; if any, to reinstate them pursuant to paragraph 2 (b), above, by payment to each of them of a sum of money equal to that which he normally would have earned as wages, during the period from five (5) days after the date on which he applies for reinstatement to the date of the respondents' offer of reinstatement or placement upon a preferential'list, less his net earnings, if any, during said period; (d) Post immediately in conspicuous places in the Kingston plant and maintain for a. period of not less than sixty (60) consecutive days from the date of the posting, notices to the employees stating that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a) arkd (b,) of this Order; and that the respondents will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; (e) Notify the Regional Director for the Second Region in writing within ten (10) days from the receipt of this Order what steps the respondents have taken to comply therewith. INTERMEDIATE REPORT Mr. Richard J. Hickey, for the Board. Mr. Maw J. Lovell, of New York, N. Y., for the respondents. Mr. Joseph Schwartz, of Philadelphia, Pa., for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed by International Ladies' Garment Workers' Union, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York, New York), issued a complaint dated July 13, 1942, against Max Ulman, Inc., herein at times called Ulman, and against Country Club Frocks, Inc, herein at times called Country Club, the two corporations being at times collectively called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and notice of hearing were duly served upon the respondents and the Union. Prior to the hearing the complaint was amended in certain respects. The complaint, as amended, alleged in substance (1) that the respondents are under a unified ownership, management and operation and are operated as a unitary and integrated business; that all cutting department employees' at the respondents' Kingston plant,' exclusive of supervisors, constitute a unit appropri- ate for the purposes of collective bargaining; that on or about July 25, 1941, a majority of employees in the appropriate unit designated or selected the Union as their representative for purposes of collective bargaining and at all times Since the Union has maintained that majority : that on or about July 25, 1941, and at all ' See foot note 12, infra. 2 At times in the Report called the Kingston plant. 840 DECISIONS OF NATI'O'NAL LABOR RELATIONS BOARD times since , the respondents have refused to bargain collectively with the Union .as the exclusive representative of the employees in the appropriate unit; (2) that since on or about April 18, 1941, the respondents have vilified, disparaged, and expressed disapproval of the Union ; have interrogated the employees about their union affiliations; have urged, persuaded, threatened, and warned their employees to refrain from assisting, becoming, or remaining members of the Union; (3) that on or about May 2, 1941, the respondents' cutting department employees at the Kingston plant ceased work concertedly and went on strike ; that the strike was caused and prolonged by the unfair labor practices detailed in the complaint On July 24,, 1942, the respondents filed an answer denying that they had engaged in any unfair labor practices and pleading affirmatively that the -respondents broke off bargaining negotiations with the Union because the unit .contended for by the Union was not appropriate. Pursuant to notice a hearing was held at Kingston, New York, on August 10, 11, and 12, 1942, before-William B. Barton, the Trial Examiner duly designated by the Acting 'Chief Trial Examiner. The Board and the respondents were represented by counsel and the Union by its representative. All participated in the hearing. Full opportunity to be heard, to examine- and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing the respondents urged a motion, filed prior to the hearing, for a bill of particulars. The motion was granted in part and denied in part 3 Near the close of the hearing counsel for the Board moved that the pleadings be amended to conform to the proof with respect to such matters as dates and spelling of names There was no objection and the motion was granted. Also near the close of the hearing the respondents moved to dismiss certain allegations of the complaint' Ruling was reserved on this motion. It is hereby denied. None of the parties availed themselves of the privilege of arguing orally before the undersigned. The respondents and the Union have filed briefs with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. TILE BUSINESS OF THE RESPONDENT Max Ulman, Inc., is a New York corporation with the principal office in New York City and its plant at Kingston, New York. This respondent manufactures, sells, and distributes ladies' garments and related products . The principal raw material used by the respondent Ulman is cotton fabric. During 1941 approxi- mately $350,000 was spent 'for such material, all of which was shipped from 8 The motion requested a number of details regarding the allegations in paragraph 10 of the complaint that the respondents had vilified , disparaged, and expressed disapproval of the Union ; had interrogated their employees concerning union affiliation ; and had urged, persuaded , threatened , and warned their employees to refrain from assisting , becoming, or remaining members of the Union . The order granting the motion for a bill of particulars required that the names of the respondents' officials, supervisory employees, or agents who did or said the things alleged be set forth but denied the motion in other respects The undersigned also stated at the time of the ruling that if the respondents were surprised by any of the evidence additional time for preparation would be granted. No requests for additional time were made during the hearing on the ground of surprise. "The respondents moved to dismiss, the allegation in paragraph 6 that the "cutting department employees" constitute an appropriate unit , the allegations in paragraph 10 set forth above , and the allegations in paragraph 12 that the strike was caused and pro- longed by the unfair labor practices of the respondents The motion was also directed to the related supporting paragraphs. MAX ULMAN, INC. 841, outside the State of New York to the Kingston plant. During the same year, the respondent Ulman made sales of finished products amounting to approxi- mately $650,000. About' 85 percent of these finished products were shipped from the Kingston plant to places outside the State of New York. - Country Club Frocks, Inc., is also a New York corporation with its principal office at Kingston, New York. In or about June 1941 it began liquidation of its business and no longer carries on operations, although the corporation has never been dissolved During the time the respondent Country Club carried on operations it also was engaged in the manufacture, sale, and distribution of- ladies' garments and related products, and carried on such business in the same plant at Kingston where the respondent Ulman also maintains its business. The principal raw materials used by the respondent Country Club were wool and rayon fabrics During the first half of 1941 it spent approximately $60,000 for the purchase of such materials, all of which were shipped to the Kingston plant from places outside the State of New York. During the same period it made sales of finished products in the approximate amount of $95,000. About 85 per- cent of these finished products were shipped from the Kingston plant to places outside the State of New York. During the time the respondent Country Club carried on operations it and the respondent Ulman were under the same management. Counsel for the, respondents stated at the hearing that the employees of one were also the em- ployees. of the other. H. THE ORGANIZATION INVOLVED • ' ' International Ladies' Garment Workers' Union, affiliated with the,American• Federation of Labor, is a labor organization. It admits to membership em- ployees at the Kingston plant. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit The Board seeks to establish a unit composed of the respondents' cutters.' The respondents contend that such a unit is inappropriate, and that all the production employees should be included in the unit. ' The cutters are all male employees; the other production employees in the Kingston plant are by a large majority female d The cutters are paid on an hourly basis ; most of the other production employees are paid on -a piece-work basis ° Of the goods on which the cutters woik at Kingston, 20 to 25 percent is finished in so-called contract shops away from Kingston ; there is no evidence that any of the other production employees do any part of their work on goods worked upon in such shops. The cutters for Ulman work together in one group and those for Country Club, while that respondent carried on operations, worked together in another group ; e the other production employees, known as operators, pressers, and floor girls, work apart from the cutters in another part of the plant See footnote 12, infra. 'The pay roll of May 1, 1941, shows only four male employees among all the other production employees. 70n May 1, 1942, the two respondents bad nine cutters on their pay rolls. Other pro- duction employees were 62 operators, 14 pressers, and 22 floor girls All of the operators and some of the pressers worked on a piece-work basis s Although, as a matter of bookkeeping, while the respondent Country Club carried on operations certain cutters were on its pay roll and other cutters were on that of the respondent Ulman, the employees of one, as explained above, were also employees of the other. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called the stitching room.' Moreover, the cutters are under different super\ isioli, from that of employees in the stitching room Geographically, Kingston is in the vicinity of New Yoik City. There is no history of the respondents ever having dealt with any labor organization as the representative of their employees for purposes of collective bargaining How- ever, the cutters in the New York area have a long history of self-organization. They have maintained a local, continuously since about 190010 Prior to 1910 the cutters at times made verbal collective bargaining agreements with employers. Presently the cutters' local, jointly with a local of children's dress, infants' wear, housedress and bathrobe makers, maintains a collective bargaining con- tract with the Cotton Apparel and Robe Production Association, Inc., an associa- ' tion of employers in the vicinity of New Yoik City. The cutters' local in New York City also has representatives on a so-called joint board along with repre- sentatives of three other local unions whose members are employed in the dress manufacturing industry, but none of whose members are cutters. The cutters' local and the three other locals who have representatives on the joint board negotiate collective bargaining contracts in New York City with employers and employers' associations, but the cutters' local, unlike the other three locals, .does not do its negotiating with the employees through the joint board This local does its own negotiating. The evidence does not show that any effective campaign of self-organization of the respondents' employees has ever extended beyond the limits of the unit proposed by the Union,,and it is clear that employees beyond the limits of the unit do not presently have self-organization. Under these circumstances, to find the unit contended for by the Union to be inappropriate would deprive the cutters of the advantages of self-organization until such time as the remaining produc- tion employees should effect self-organization.", That the cutters desire a separate bargaining unit is shown by the fact that they went on strike as described below in protest against the respondents' refusal to deal with their representative. No contentions were raised at the hearing about whether supervisory employees should be included in the unit. It is obvious, however, that the Union has obtained no designations from them. The undersigned will, therefore, follow the usual practice and exclude them. The undersigned finds that the cutters 12 employed at the Kingston plan, exclud- ing supervisory employees, constitute a unit appropriate for purposes of collective 9 Although the various sections of the plant are at times referred to as the Max Ulman cutting room, the Country Club cutting room, and the stitching room, these various divisions were not in fact separated by partitions. They are referred to as rooms as mere trade expressions 1° There is also evidence that the cutters had a local from 1890 to about 1894 when it became defunct until about 1900 11 See Matter of Crescent Dress Company and Cutters Local 11, I L C W U, A F. of L. 29 N. L R. B 351, wherein the Board observed that, although either a unit of the cutters or of all production employees would be appropriate, self-organization was limited to the cutters. It found the cutters 'to be an appropriate unit, but stated: "Our determina- tion herein as to the appropriate unit, however, is no bar to a later revision in accordance with changes in the status of self-organization of the Company's employees " 12The complaint describes "cutting department employees . . as an appropriate unit. It is clear from the evidence that no such group of employees in the Kingston plant has ever been known as a department. It was argued at the hearing, however, that regardless of whether the employees in the claimed unit were a, department, the parties understood the complaint to refer to "cutters and spreaders" At times the testimony refers to "cutters" and at times to "cutters and spreaders." The evidence shows that at least substantially all the cutters in the Kingston plant also do spreading work and vice versa, and that as a practice in the trade the same employee often does both types of work. The undersigned yin this Report has referred to the employees who' do the two classes of work in the Kingston plant as "the cutters 11 MAX ULMAN, INC. 843 bargaining with respect to rates of pay, wages , hours of employment , and other conditions of employment, and that said unit insures to the employees at the. Kingston plant the full-benefit of their right to self-organization and to collective bargaining and otherwise effectuates , the policies of the Act. 2. Majority representation As of May 1, 1941, there were listed on the respondents' pay rolls the names of nine employees within the appropriate unit. Cards signed by eight of these employees; dated April 21, 29, and 30 , 1941, designating the Union as their representative for purposes of collective bargaining , were introduced in evidence at the hearing On May 2, 1941, the cutters went on strike because of certain conduct of the respondents on that date as detailed below including a claimed refusal of the respondents to•deal with the Union on their behalf for purposes of collective bargaining . This strike is still in effect" The undersigned finds that on May 2, 1941 , and at all times material thereafter, the Union was designated and selected by a majority of the respondents' em- ployees at their Kingston plant in the appropriate unit, and ,pursuant to Section 9 (a) of the Act, was on that date , at all times material thereafter , and now is the exclusive representative of all the employees in such unit for the purposes of. collective bargaining in respect to rates of pay, wages , hours of employment, and other conditions of employment. 3. The refusal to bargain ; interference , restraint, and coercion The respondents did, not deny in their answer and admitted at the hearing that they broke off collective bargaining negotiations with the Union, but alleged in their answer and contended that the reason they did so was because the unit requested by the Union is not appropriate . 14 It is therefore necessary to determine whether the facts indicate that the respondents reasonably and in good faith took the position , in dealing with the Union , that the unit urged by the Union was not appropriate. During the month of April 1941 the Union undertook to organize the cutters in the respondents ' Kingston plant." About the middle of that , month Joseph Schwartz , a general organizer for the Union , met Joseph E. Honig, secretary and general manager of both respondents , in a hotel in Kingston . Schwartz on this occasion informed Honig of the Union's plan to conduct an organizational drive which would affect the respondents ' employees in Kingston . Honig testified that Schwartz at this meeting said the Union represented a majority of the cutters and inquired whether the respondents would enter negotiations with respect to them ; that Honig told Schwartz he viewed the cutters as "an integral part of the operation of the shop" and would not negotiate with respect to them but would be willing to negotiate with respect to "all the workers" if the Union could prove its majority . Honig's testimony regarding this conference , as stated above, was not denied. The undersigned credits it. On April 18 Honig spoke to the employees of the respondents at a meeting held in the plant ." Honig stated in the speech that many employees had come to him 18 Two of those employees who had designated the Union ultimately returned to work, but the strike has never been called off and the other strikers never returned to work 14 The respondents made substantially these same contentions in their brief The evidence shows that the Union also had a few members among other employees in the plant 19 Honig testified that he gave this speech because a number of employees had been questioning him as to their rights. 844 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD for advice ' in connection with the Union 's campaign to organize employees at Kingston ; that he surmised from their questions that they were unfamiliar with the "Wagner Act" and had therefore decided to inform them as to the status both of themselves and the employer . Honig ' made the following further statement to the employees : I want to emphasis ( sic) that this act gives you the right to affiliate with any union. That this act also gives you the right to openly engage in Union activity without any interference from your employer. However, there is nothing in this act which states that you must or should affiliate with any union . That is entirely up to you. There is nothing in this act which states that you must listen to, or enter- tain any propositions of any union or individuals engaged in organizing activities. That is entirely up to you. If any organization is favored with more than 50 % of the votes in your shop, then ' your employer must, under the Wagner Act, recognize that body as the bargaining agent for your shop. However, there is nothing in the Act which compels your employer to pay the wage demands of any union or bargaining agent. The only law governing that is the Wage and Hour Law which at the present time stipulates a your industry. This minimum will beminimum wage of 35 0 an hour in increased to 400 an hour at the discretion of the Administrator of the Wage and Hour Law. Under the Law nobody but your employer is in a position to guarentee (sic) any increase in your present earnings . Your only recourse to get higher wages under the - law is your right to strike for it. Under the law neither your employer or anybody else has the right, to in any way coerce or threaten you. I -bring these fact before you to show that you can act in any manner you see fit without .interference from any source. The civil authorities are here to protect your civil rights and the National Labor Relations Board will protect your rights insofar as the Wagner Act is concerned. On May 2, 1941, a few minutes before the close of working hours Honig spoke to the employees in the plant. He told them that he had that morning refused a request of a committee that the employees be allowed to hold a meeting in the plant at 5 o'clock, stating that it had arranged for a meeting at the Y. M. C. A. Honig stated that since there had been much commotion and no production during the day, the power had been shut off and that those who so desired could go to the Y. M. C. A. to attend a meeting arranged by their co-workers. After Honig had made this statement the employees received their pay for the preceding week. Ten employees received increases in their weekly wagel7 Of the ten employees who received these increases eight were. cutters. The one other cutter who was on the pay roll at that time had received an increase a week or two previous." 17 The increases. consisted of one at one dollar ($1), six at two dollars ($2), one at three dollars ($3), and two at five dollars ($5). Is Calvin N. Swart was the other cutter who had previously received an increase Of the remaining two raises one was given to Borah Bodin , a supervisory employee over the cutters , and the other to John Mayone , a presser. MAX ULMAN, INC. 845 After the employees had received their pay, they assembled across the street from the plant in the Kingston Y. M. C. A gymnasium behind closed doors.19 Jennie Primo and Bernard Chester, supervisors in the stitching room, both attended- this meeting ' A written vote was taken at the meeting regarding whether those present desired to affiliate with the Union. A majority of the votes cast were opposed to such affiliation. The cutters attended the meeting, but did not vote.' Immediately after the meeting they assembled in the union offices in Kingston and Schwartz undertook to telephone Honig at the Kingston plant, but received a reply from a female voice that Honig was out of the city. Schwartz saw Honig about that time through a window at the plant. Schwartz then sent Honig a telegram both to his home and to his office. The telegram was as follows : - We have telephoned you repeatedly for a conference. Your refusal to meet and your coercion of employees is a clear cut violation of the National Labor Relations Act. Unless you meet with us by eight o'clock this evening, Governor Clinton Hotel, we will be compelled to cease work. Honig did not reply to the telegram. On the same day after these events the cutters voted to strike. Except for two of the cutters who later returned to work, the cutters as stated above have remained on strike since May 2. On May 8 during the strike Chester met Murl Auchmoody, one of the strikers, in front of the plant. Auchmoody's uncontroverted testimony regarding what Chester said on this occasion, which the undersigned credits, was as follows : "I met Mr. Chester nut in front of the factory. He told' me that I was foolish to be striking, Mr. Honig thought well of me, if I would come back to work they would fix everything up." In June and the early part of July, Schwartz telephoned Honig, several times. Honig told Schwartz during,this period that it was useless to meet and to let the situation be until such time as it might change one way or another. On or about July 10, 1941, however, the Union filed a charge which alleged that the respondents had refused to bargain. Thereafter, a conference took place at the offices'of the Board at 120 Wall Street, New York City. Honig,, Schwartz, Nathaniel H. Janes, an attorney for the Union, and Thomas A Knowlton, Field Examiner for the Board, attended this conference. Schwartz on this occasion requested that the respondents bargain with the Union as the representative of the cutters. Honig questioned whether the Union had a majority and Knowlton suggested that the question be determined by a count of cards, an election, or the 19 Schwaitz about that time appeared in the lobby of the Y M. C. A and indicated to George Goodfellow , a general secretary of the Y Al C A, an intention of entering the meeting. Goodfellow told Schwartz "that he had no right to go in." Schwartz then protested that there were representatives of the management at the meeting Goodfellow then escorted from the meeting Morris Glassberg , a designer , and a lady whom Schwartz pointed out to Goodfellow . The evidence does not establish , however, that Glassberg and the lady were supervisory employees m The testimony that these two supervisors attended the meeting at the Y. M C A. was undenied 21 It also appears that one of the cutters undertook to address the meeting , but did not succeed in doing so because of the commotion 22 Schwartz testified also that one of the cutters stated about the some time that lie saw Honig through a window in the plant . Honig did not deny in his testimony that he was present in the plant when Schwartz tried to communicate with him. 29 During the period from sometime in June until about July 7, Schwartz testified without contradiction . "I called Dir . Honig on the average of once a week in all cases from Kings- ton, in one instance from the city of Philadelphia on long - distance . Mr Honig answered the phone on all these instances." 846 DECISIONS OF NATIONAL LABOR 'RELATION S BOARD fact that a majority of the cutters were on strike. It was agreed during the meet- ing that Honig would communicate with Knowlton on July 2G. On July 25 Honig wrote Knowlton a letter as follows : In accordance with our discussion at your office on Wednesday, July 23rd, we will agree to negotiate with the I. L. G. W. U. in behalf of the cutters providing the I. L. G. W U. drops their charges of unfair labor practices as filed with the National Labor Relations Board. I plan to be in New York on Tuesday, July 29th, and could meet with Mr. Schwartz at your office at 10: 00 A. M. Please confirm this appointment. Knowlton after receipt of this letter arranged for another conference at the Board offices on July 29. Schwartz, Honig, and Knowlton attended this confer- ence. As spokesman for the cutters, Schwartz at this conference requested a closed shop, reinstatement of the cutters with division of work among them, and a revision of the wage scale for the cutters. Schwartz also suggested submission to an arbitrator of the'points concerning which the Union and the respondents disagreed. Honig refused the closed-shop demand. He informed Schwartz that the respond- .ent Country Club was,being liquidated and for that reason the respondents could not reinstate all the cutters. He stated that an increase in wages could not. t granted because the cutters had already been granted an increase. Honig refused to submit all disputed matters to an arbitrator, but indicated a possible willingness to consider arbitration as to the discharges 24 Honig and Schwartz continued the discussion privately after this conference in the Board offices and finally agreed to meet again a few days later ° They met accordingly in the lobby of a hotel in New York City about August 19 or 20.n Schwartz on this occasion again urged the Union's position that the striking cutters should be reinstated, the work divided among them, and wages' increased. Honig refused these de- mands, urging that because of the liquidation of County Club the respondents needed fewer employees and that an agreement about division of work could be arrived at only if there could also be an agreement for a reduction in the'size of the personnel. Honig again expressed an unwillingness to submit disputed matters to arbitration with the possible exception of the matter of discharges On.Septemiber 24, 1941, Schwartz, Honig. and Janes met, with Knowlton at the Board's offices in New York City for further discussion. At.this meeting a form of written contract between the Union and Ulman was drafted. By the terms of this document Ulman was to recognize the Union as the exclusive bargaining agent of the cutters, this respondent was to reinstate the strikers without dis- crimination, the work was to be distributed among the cutters pursuant to aglee- ment to be made with the Union, this respondent and the Union were to deter- mine upon a system of lay-offs in the event lay-offs became necessary, the em- ployer was to confer with the Union after discharges and in the event of inability 24 In mentioning the problem of the discharges it is not clear whether the lefei ence wi as to the question of reinstating the strikeis, of the question of the reduction in personnel caused by liquidation of Country Club. 24 The events of this conference are based on the testimony of Schwartz. Honig did not deny the substantial accuracy of Schwartz's testimony about the conference, Honig testifying, ". . . there was a lot of propositions put to me in behalf of the cutters, some of which were absolutely out of line, which I would not accede to , and there was a great deal of discussion,,but we arrived nowhere that particular day " 29 Honig placed this conference as having taken place right after the July 23 conference at the Board offices The undersigned is convinced from Schwartz's recollection of the details regarding how it was arranged that he also iemembered the date correctly as "about August 19 or 20 ." Even if it took place on July 23 , as Honig testified , such fact would have no material effect on the situation. MAX ULMAN, INC. 847 to agree with the Union, the matter was to be submitted to arbitration, only the employees covered by the agreement were to do the spreading and cutting a'iid the foreman over these elr..ployees was to do cutting or spreading not in excess of 2 da} s a week, all cutting was to be done in the Kingston plant, unsettled grievances were to be arbitrated by an arbitrator named by the New York State Mediation Board in the event the parties were unable to agree on the arbitration, certain designated employees were to lie rehired or offered employment before any other Wrings were to take place, replacements of union members were to be made through the Union, and specified wage increases were to be given employees em- braced by-the-agreement. Honig took with him from the meeting a copy of this document, but never signed it. Both Schwartz and Janes testified that the docu- ment represented matters on which the Union came to substantial agreement with Honig at the conference and that be stated, but' only after the 'document was drafted, that he would not sign it until it was submitted to his lawyer for the making of minor changes Honig's testimony states it different version regarding how the document came to be drafted. He testified: There wasn't anything that I could agree to there, and finally Mr. Knowl- ton suggested that we draw up a memorandum of an agreement and that I think over and let them know what we intended to do about it. ,Honig admitted that he made no objections while the document was being drafted and did not announce his intention of submitting it to his attorney until after its preparation. The fact that the document was dictated and typed during the meeting is corroborative of Schwartz and Janes' testimony. The preparation of the document at that time is consistent with the conclusion that, it represented matters on which the parties had in substance reached agreement' during the meeting Honig's failure to object during its dictation also supports this conclu- sion. The undersigned finds that at the conference on September, 24, 1941, the parties orally expressed, agreement regarding the substance of the matters set forth in the document drafted on that occasion. On October 4, 1941, a final conference took place at the Board offices in New York City Schwartz, Janes, Honig, Max J Lovell, attorney for. the respondents, and Knowlton attended this conference. This occasion was the only time Lovell participated in the negotiations. Honig and Lovell advised Schwartz and Janes at this meeting that the' respondent Ulman would not sign the proposed written contract which had been prepared during the preceding meeting. -Honig and Lovell stated that they deemed a unit of the cutters inappropriate, and Lovell asked that all negotiations be reopened. The Union refused to do this, Janes and Schwartz stating that the "moves" made by Honig constituted a course which tended to prolong the strike and work an injustice to the cutters. There have been no further negotiations between the parties since this meeting. Honig, testified that the question of the appropriate unit was raised by him not only on October 4, 1941, but also at the conferences in July, August, and Sep- tember detailed above. Schwartz denies that Honig raised the question of the unit at the conferences in the Board offices in New York City, and Janes, who attended the conferences on July 23 and September 24, corroborated Schwartz's testimony that Honig did not raise the question of,the unit at those conferences.' Schwartz admitted, however, that in private discussion with Honig after the July 23 conference Honig mentioned the fact that the Union did not represent a majority of all the employees "and that in all fairness it ought to be all or noth- ing" It is unnecessary to determine whether Honig raised the question of the Janes testified affirmatively that the question of the unit was not raised on July 23 and indicated by his enumeration of the matters discussed on September 24 that the question likewise was not raised on that date. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit in the conferences at the Board offices prior to October 4 since on the basis of Schwartz's testimony it is clear that Honig raised the question on July 23 at least .in substance in private discussion with Schwartz as the Union's representative. CONCLUDING FINDINGS The question presented by the above facts is 'whether the respondent Ulman reasonably and in good faith contended in the negotiations with the Union that the cutters did not constitute an appropriate unit. , The purpose which motivated this contention is revealed only when considered in connection with this respond- ent's other conduct. The incident on May ' 2 when Honig told ,the_ employees they could go to the Y. M. C. A. to vote was an act of employer interference with the complete freedom that should have been allowed the employees..-in ,determining whether they wanted the Union to represent them as their agent for purposes of collective bargaining. The announcement by Honig that enr ployees who desired could go to the meeting placed a stamp of employer approval on the procedure and was an act of interference The meeting itself was even ,more clearly an act of such interference since Primo, and Chester, who were identified with the management, were present at the meeting. Moreover, the increases in wages given all but one of the cutters just after Honig announced that. the meeting would be held, clearly indicated an attempt to destroy the Union's influence among that group of employees on,behalf of whom it was then seeking to bargain. It is also significant that the Union received no reply either from its telephone calls or its telegrams to Honig after the meeting on May 2. Honig never denied in his testimony that he was_ present in Kingston at that time and,,that he received these communications. His failure to reply to them indicates an-unwillingness to deal with the Union. FIonig's refusal in June and early July to meet -with representatives of the Union in response to the telephone calls of Schwartz similarly indicates an unwillingness to deal with the Union_ Honig further indicated an unwillingness to deaf with the Union and that the question,of,the appropriate unit was not really the reason when he questioned the -Union's majority representation of the cutters at the meeting on July 23 He questioned the Inajornty'even though the cutters had fully demonstrated their strength by the number of them who had remained on strike since May 2. That Honig himself did not consider his question of their majority representation seiiously.is shown by his failure to request either an election or a count of cards, methods of determining such question which Knowlton suggested on July 23 in addition to its determination by the fact that a majority were on strike. Moreover, Honig's refusal to submit disputed matters to arbitration and, his refusal to sign the written contract prepared on September 24 even though there had been oral agreement on the matters embraced in it also show an unwillingness to'deal with the Union. This conclusion is'the more compelling in view of the fact that in the letter of July 25, 1941, the respondent Ulman announced' that it would negotiate with the cutters, but on October 4 thereafter completely reversed that position. In view of the entire conduct of the respondent Ulman the undersigned is convinced that the question raised by that respondent about the appropriateness of the unit was not the real reason that respondent was reluctant to deal with the Union but that it was using the question of the appropriate unit as an excuse for evading the duty to deal with the duly desig- nated representative of its employees The undersigned finds that- this attempt to evade dealing with the -Union manifested itself on May 2, 1941, When Honig refused to reply to the communications of Schwartz and that- the attempt continued thereafter. ' MAX ULMAN, INC. 849 The undersigned finds that on May 2, 194128 and at all times thereafter, the respondent Ulman refused to bargain collectively with. the Union as the exclusive representative of its employees in the appropriate unit in respect to rates-of pay, wages, hours of employment, and other conditions of employment. The facts set forth above demonstrate a course of conduct the effect of which was to interfere with membership in and activity on behalf of the Union. This speech of Honig on April 18, 1941, was the first such conduct. This speech represented the management's interpretation of the Act to the employees and was clearly employer interference in a matter with respect to which the employees had a right to,be left free to do their own thinking and exercise their own choice - Ilonig's-announcernent of the meeting on May, 2, 1941, together with the attendance of Primo and Chester at that meeting were similarly acts of inter- ference. Moreover, the announcement of this meeting by the plant's general manager constituted not only employer approN al of the meeting, but also a subtle way of thwarting the activities of the cutters for the Union by placing them as a small minority in a meeting of the more numerous employees who did not have self-organization when the vote as described above took place. Chester's conversation with Auchmoody on May 8 clearly could not help but have the effect of discouraging membership in the Union. The undersigned finds that by the speech of Honig on April 18, 1941, by the announcement of the meeting of May 2 and the attendance of Chester and Primo at that meeting, by Chester's conversation with Auchmoody on May 8 and by the other conduct detailed above the respondent Ulman interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The strike The strike of May 2, 1941 , was called after the respondent Ulman failed to -accord the union representatives a meeting on that date . The telegram sent by Schwartz to Honig on that date mentioned the "refusal to meet" and also "coercion of employees ," stating that a strike would take place unless' a meeting took place . The undersigned finds that the unfair labor practices on that date as detailed above were a cause of the strike . The refusal to bargain on that date and thereafter as set forth above made impossible a settlement of the dif- ficulties which precipitated the strike The undersigned finds that the unfair labor practices of the respondent Unman after May 2, 1941 , prolonged the strike. IV PARTICIPATION AND RESPONSIBICUTY OF COUNTRY CLUB FROCKS, INC., IN AND FOR THE UNFAIR LABOR PRACTICES As set forth above, until after the commencement of the strike of May 2, 1941, both the respondent Ulman and the respondent Country Club carried on business at the same address in Kingston, New York The two corporations were con- trolled by the same management. As long as both corporations carried on operations, the employees of one were also employees of the other. In or about June 1941, however, the respondent Country Club began to liquidate and has ceased operations The corporation has not been dissolved. It is therefore possible that it will resume operations at any time. The complaint alleges the refusal to bargain as having taken place on July 25, 1941, and thereafter. The undersigned is convinced from the evidence that it took place on May 2, 1941, and thereafter, and has so found. Since the events of May 2, 1941, were "tried" in connection with other allegations in the complaint, the finding of the refusal as of that date and thereafter is not prejudicial. 493508-43-vol 45--54 850 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the circumstances the respondent Country Club is responsible for the unfair labor practices committed detailed above. The undersigned finds that the respondent Country Club has refused to bargain collectively with the Union as the representative of the employees within the appropriate unit regarding wages, hours, and working conditions ; and that by such refusal to bargain and the other conduct detailed above, the respondent Country Club has interfered with, restrained, and coerced the employees at the respondents' Kingston plant in the exercise of rights guaranteed them by the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III and IV above, occur- ring in connection with their operations 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 and have led to labor disputes burdening and obstructing commerce.and the free flow of commerce. VI THE REMEDY It is essential to an effectuation of the purposes and policies of the Act that the respondents, and each of them, be ordered to cease and desist from the unfair labor practices in which they have engaged and for which they are responsible. The undersigned will recommend that. the respondents and each of them cease and desist from such practices in which they have engaged. The undersigned has found that the respondent Ulman has refused to bargain collectively with the Union since May, 2, 1941, and that the respondent Country Club also refused to bargain from that date until it discontinued operations. Since the respondent Country Club is no longer carrying on operations, no affirma- tive recommendation will be made that it bargain with the Union The under- signed will recommend, however, that the respondent Ulman' not only cease and desist from refusing to bargain collectively, but also, in effectuation of the policies of the Act, bargain collectively with the Union upon request,as the exclusive bar- gaining agency of employees within the appropriate unit. Since the respondent Country Club committed unfair labor practices as set -forth above before it discontinued operations, the undersigned will recommend that in the event it iesumes operations it post notices in its plant stating that it will cease and desist from the unfair labor practices it has committed. The strike of May 2, 1941, was caused and prolonged by'the unfair labor practices of the respondents. In order to restore the status quo as it existed prior to the time the respondents, committed the unfair labor practices the undersigned will recommend that the respondent Ulman upon application offer reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, to those employees who went on strike on May 2, 1941, or thereafter, and who have not previously applied for reinstatement : dismissing if necessary any- persons hired after May 2, 1941, the date of the strike, and not employed on said date. If thereupon, because of a reduction in force, there is not sufficient employment available, for the employees to be offered reinstatement, all available positions shall be distributed among all employees, without discrimination against any employee because of his union affiliation or activities, following such a system of senior- ity or other non-discriminatory practice to such extent as has heretofore been applied in the conduct of the respondents' business. Those employees, if any, remaining after such distribution, for whom no employment is immediately avail- able, shall be placed upon a preferential list and offered employment in 'their MAX ULMAN, INC. 851 former or substantially equivalent positions as such employment becomes avail- able and before other persons are hired for such work, in the order determined among" them by such system of seniority or other non-discriminatory practice -as h'as heretofore been followed' by the respondent Ulman. The undersigned will also 'recommend that the respondent Ulman make whole those employees who went on strike on May 2, 1941, or thereafter, and who have not previously applied for 'reinstatement for any loss of pay they may suffer by reason of that respondent's refusal, if' any, to reinstate them, as provided above, by pay- ment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from five (5) days after the date on which he applied for reinstatement to the date' of the respondent's offer of rein- statement or placement on' a preferential list, less his net eariiings,2e if any, during such period: The undersigned will also recommend that the respondent 'Country Club take like 'fiction with respect to reinstatement of the strikers and loss of pay in the event that respondent resumes operations.'0 CONCLUSIONS OF LAW 1. International Ladies' Garment Workers' Union, ifHliated with the American Federation of Labor, is a labor orgrnization within the meaning of Section 2 (5) of the Act , 2. The cutters employed in the Kingston plant excluding supervisory em- ployees, have at all times herein constituted and now constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section, 9 (h) of the Act. 3 International Ladies' Garment Workers' Union, affiliated with the American Federation of Labor, is and at all times since May 2, 1941, has been the exclusive representative of all employees in such unit for the purposes of collective bar- gaining, within the meaning of Section 9 (a) of the Act. 4 By refusing to bargain collectively with International Ladies' Garment Workers' Union, affiliated with the American Federation of Labor, the respond- ents have engaged in and the respondent Ulman is engaging in unfair labor prac- tices, within the meaning of Section 8 (5) of the Act. 5 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and the respondent Ulman is engaging in unfair labor practices, 'within the meaning of Section 8 (1) of the Act. 6 The aforesaid labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. n 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 the unlawful discrimination in his hire or tenure of employment 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 shall be considered as earnings Republic Steel Corporation v. National Labor Relations Board, 311 U. S. 7. 30 Since the employees of one respondent were also employees of the other until the respondent Country Club ceased operations the remedy is to be applied alike to all em- ployees who went on strike on May 2, 1941, regiirdless of the pay roll on which their names happened to appear. Nothing in this Intermediate Report, however, shall be deemed to require the respondent Country Club, in event it should resume operations, to make whole employees for loss of pay provided the respondent Ulman has already carried out the recommendation that it do so. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law the under- signed recommends that the respondents, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Ladies' Garment Workers' Union as the exclusive representative of the cutters at the Kingston plant, excluding supervisory employees, this recommendation that the respondent Country Club cease refusing to bargain to have application to that respondent in, the event it is now doing business or does in the future re-enter the business of the manufacture, sale, and distribution of ladies' garments and related products or any substantially similar business ; (b) In any other manner interfering with, restraining, or coercing their em- ployees in the exercise of the right 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 Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act, the affirmative action detailed below to have application to the respondent Country Club in the event it is now doing business or does in the future re-enter the business of the-manufacture, sale,-and-distribu- tion of ladies' garments and related products or any substantially similar business : (a) Upon request, bargain collectively with International Ladies' Garment Workers' Union as the exclusive representative of the cutters at the Kingston plant excluding supervisory employees; (b) Upon application offer to those employees who went on strike on May 2, 1941, or thereafter, and who have not previously applied for reinstatement, imme- diate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and-privileges, in the manner provided in the section entitled "The Remedy" above; and place those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner,-offer them employment as it becomes available ; (c) Make whole the employees specified in' paragraph 2 (b) above, for any loss of pay they may suffer by reason of the respondent's refusal, if any, to rein- state them pursuant to paragraph 2 (b) above, by payment to each of them of a sum of money equal to that which he normally would have earned as wages, during the period from five (5) days after the date on' which he applies for reinstatement to the date of the respondents' offer of reinstatement or placement upon a preferential list, less his net earnings, if any, during said period, (d) Post immediately in conspicuous places in the Kingston plant and main- tain for a period of not less than sixty (60) consecutive days from'the date of the posting, notices to its employees stating : that the respondent posting such notices will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of these recommendations; and that such respond- ent will take the affirmative action set forth in paragraph 2 (a), (b) and (c) of these recommendations ; (e) Notify the Regional Director for the Second Region in writing within twenty (20) days from the receipt of this Intermediate Report what steps the respondents have taken to comply therewith. MAX ULMAN, INC. 853 It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report the respondents no said Regional Director in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended-any party may within thirty (30) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Inter- mediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission'to argue orally before the Board, request therefor must be made in writing to the Board within twenty (20) days after the date of the order transferring the case to the Board: WM. B. BARTON, Tiial Examiner. Dated September 23, 1942.