Omaha Hat Corp.

National Labor Relations Board - Board Decisions

Jan 12, 1938

4 N.L.R.B. 878 (N.L.R.B. 1938)

In the Matter of OMAHA HAT CORPORATION and UNITED HATTERS, CAP
AND MILLINERY WORKERS INTERNATIONAL UNION, LOCAL Nos. 7
AND8
Cases Nos. C-256 and B-279.-Decided January 12, 1938
Men ' s Hat Industry-Interference , Restraint or Coercion : closing plant and
preparing to remove operation to new location-Discrimination: discharge-
Unit Appropriate for Collective Bargaining : production employees-Representa-
tives: proof of choice : applications for membership in union-Collective Bar-
gaining: meeting with representatives , but with no intention of bargaining in
good faith ; refusal to negotiate with representatives-Strike: provoked by em-
ployer 's unfair labor practices-Reinstatement Ordered: employees discharged;
strikers upon application for reinstatement-Back pay: awarded employees
discharged ; strikers , from date of denial of application for reinstatement.
Mr. David A. Moscovitz , for the Board.
Mr. David T. Smith, of New York City, for the respondent.
Mr. David I. Ashe, of New York City, for Local Nos. 7 and 8.
Mr. Robert Burstein , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by United Hatters, Cap and Millinery
Workers International Union, Local Nos. 7 and 8, herein called the
Locals, the National Labor Relations Board, herein called the Board,
by Elinore M. Herrick, 'Regional Director for the "Second Region
(New York City), issued its complaint dated September 2, 1937,
against Omaha Hat Corporation, New York City, herein called the
respondent, alleging that the respondent had committed unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(3), and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. The complaint and
accompanying notice of hearing were duly served upon the parties.
In respect to the unfair labor practices, the complaint alleged in
substance : (1) that the production employees of the respondent,
exclusive of supervisory, clerical, and shipping employees, constituted
an appropriate unit for the purpose of collective bargaining, within
the meaning of Section 9 (b) of the Act; (2) that the Locals, on or
878
DECISIONS AND ORDERS 879
about July 5, 1937, had been designated by the majority of the
employees in such unit as their representatives for the purposes of
collective, bargaining, and, at all times thereafter, were the exclusive
representatives of all the employees in said unit ; (3) that on or about
July 12, 1937, and thereafter, the respondent refused to bargain with
the Locals- as the exclusive representatives of all the employees in
such unit; (4) that the respondent has urged, persuaded, and warned
its employees against becoming or remaining members of the Locals,
has threatened its employees with discharge and other reprisal if they
became or remained members thereof, and has kept under surveillance
the meetings and meeting places of the members of the Locals; (5)
that the respondent, on or about July 13, 1937, discharged David
Magzamen 1 and Guiseppi Rivoli 2 for joining and assisting the Lo-
cals; (6) that on or about July 15, 1937, as a result of the respondent's
unfair labor practices, the production employees of the respondent,
listed in Schedule A attached to the complaint, went out on a strike
which has continued up to and including the date, of the complaint;
(7) that on or about September 2, 1937, said striking employees applied
for reinstatement on condition that the respondent agree to bargain
collectively with the,,Locals and desist from the other unfair labor
practices, but that the respondent refused and has continued to refuse
to reinstate them; and (8) that on or about August 25, 1937, the
respondent commenced to move its machinery and operations to New
Jersey and has continued to do so up to and including the date of the
complaint, in order to discourage membership in the Locals and to
discriminate against members of such Locals.
In the course of the hearing, the respondent filed an answer 3 to
the complaint, denying that it had engaged in the alleged unfair labor
practices and asking that the complaint be dismissed.
The Locals also filed a petition, dated July 12,1937, and an amended
petition, dated September 2, 1937, requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the Act.
On September 3, 1937, the Board, acting pursuant to Article III, Sec-
tion 3, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, ordered an investigation and authorized the
Regional Director to conduct it and to provide for an appropriate
hearing upon due notice. On the same day, the Board, acting
pursuant to Article III, Section 10 (c) (2), of the Rules and Regula-
tions, ordered that the two cases be consolidated.
Pursuant to notice, a hearing on the complaint and petition was held
in New York City on September 8, 10, 13, and 14, 1937, before H. R.
I Referred to in the charge and complaint as David Magzawen.
2 So spelled in the transcript of the hearing ; referred to in the charge and complaint
as Guisseppe Rivoli.
I Board's Exhibit No. 1-A.
880 NATIONAL LABOR RELATIONS BOARD
Korey, the Trial Examiner duly designated by the Board. The
Board, the Locals, and the respondent were represented by counsel and
participated in the hearing. Full opportunity to be heard, to examine,
and cross-examine witnesses, and to produce evidence bearing upon
the issues was afforded all parties. We have reviewed all the rulings
.made by the Trial Examiner on motions, objections, and other matters,
and find that no prejudicial errors were committed. The rulings are
hereby affirmed.
After the hearing the respondent filed a brief, to which we have
given due consideration. Subsequently the Trial Examiner filed his
Intermediate Report, finding that the respondent had committed un-
fair labor practices affecting commerce within the meaning of Sec-
tion 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, and
recommending reinstatement and back pay to David Magzamen and
Guiseppi Rivoli. Exceptions to both the rulings and the findings
of the Trial Examiner were filed by the respondent. Among other
things, the respondent excepted to the admission of certain testimony
offered by the Board in rebuttal on the ground that such testimony
was not properly rebuttal and was not relevant to the issues; and re-
quested that, if such testimony be held proper and relevant, the case
be reopened to afford the respondent an opportunity to offer testimony
in answer thereto. The exception is overruled and the request for
reopening is hereby denied. We have fully considered the exceptions
to the findings of the Intermediate Report and find no merit in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Omaha Hat Corporation, is and has been since
1925 a corporation organized and existing under the laws of the
State of New, York, and until September 3, 1937, had its principal
office and place of business in New York City, where it was engaged
in the finishing of men's /felt hats. On September 3, 1937, the re-
spondent ceased operations in New York City and took steps to trans-
fer its business to Garwood. New Jersey. At the time of the hearing
such, steps had not yet resulted in the resumption by the respondent
of operations in Garwood, New Jersey.
The respondent is a closed corporation. Isidore Ferzig, its presi-
dent, considers himself the "sole owner", owning or controlling all
of its stock.
Prior to the strike of July 15, the respondent employed 70 produc-
tion employees. It manufactured principally a cheaper grade of
men't felt hats, and was reputed to be the largest manufacturer of
this type of hat in the vicinity.
DECISIONS AND ORDERS 881
The principal materials used by the respondent in its operations
were hat bodies, fur, felt, ribbons, bands, lining, and leather. Ap-
proximately 75 per cent of these materials came from States other
than New York. At least 50 per cent of the finished hats were
sold and shipped directly to points outside of the State of New
York. All shipments, whether incoming or outgoing, were made
by rail or truck.
II. THE LOCALS
United Hatters, Cap and Millinery Workers International Union,
herein called the International, affiliated with the American Federa-
tion of Labor, is a labor organization which came into existence in
October 1936 as a result of the amalgamation of United Hatters
of North America and Cloth Hat, Cap and Millinery Workers
International Union. Local Nos. 7 and 8 are labor organizations
composed of female production employees and male production
employees, respectively. The jurisdiction of the Locals extends
throughout New York City.
Pursuant to authorization conferred by the International, both
Locals act jointly for the purpose of organizing the production em-
ployees in various plants in New York City and for the purpose of
collective bargaining on behalf of such employees. Although rates
of pay for women are negotiated by officers of Local No. 7 and
rates of pa,. for men by officers of Local No. 8, with separate agree-
ments normally being signed, such agreements are executed simul-
taneously on behalf of the International; and there are no plants
where the members of one Local are covered by an agreement and
the members of the other Local are not. In the event that a plant
organized by the Locals is moved beyond their territorial jurisdic-
tion, the International is authorized to act as the representative of
the Locals' members and to designate agents to carry on negotiations.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that all of the production employees of the
respondent, exclusive of supervisory, clerical, and shipping em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining. The respondent does not assert that any other unit is
the proper one. All of the production employees, except super-
visory, clerical, and shipping employees, are eligible to membership
in the Locals. They fall within the following classifications : Trim-
mers, operators, finishers, Hangers, -slickers, packers, whippers-in,
882 NATIONAL LABOR RELATIONS BOARD
binders, floor boys, and "hydraulickers." The types of work per-
formed by the employees of the various classifications are closely
related, one step following another in the ultimate production of the
finished hat. Max Finger, secretary-treasurer of Local No. 8, testi-
fied that in agreements entered into by the International, the unit
covered always consists of the production employees.
We find that the production employees of the respondent, except-
ing supervisory, clerical, and shipping employees, constitute a unit
appropriate for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other conditions of
employment, and such a unit insures to the employees the full bene-
fit of their right to self-organization and to collective bargaining,
and otherwise effectuates the policies of the Act.
2. Representation by the Locals of the majority in the appropriate
unit
The respondent's pay roll for the week ending July 16 shows a
total of 70 male and female production employees, exclusive of
supervisory, clerical, and shipping employees. Finger testified that
on July 12, when the first attempt was made by the' Locals to bar-
gain collectively with the respondent, the Locals represented about
46 production employees. In support of his testimony, Finger sub-
mitted application cards 4 for membership in, the International which
were signed by the applicants and which, in terms, authorized the
International to represent them for the purpose of collective bar-
gaining.5 No objection was raised to the admission of the cards in
evidence; nor was their authenticity questioned. Each of the cards
bears a date indicating the date of application for membership. A
comparison of these cards with the respondent's pay roll shows that
prior to July 12 at least 37 of the 70 production employees of the
respondent designated the International, or the Locals acting on
behalf of the International, as their representatives prior to July 12.8
This number increased to 50 on July 15, the date of the strike, and to
54 on July 26.
We find that on July 12, 1937, and at all times thereafter the Locals
were the duly designated representatives of the majority of the em-
ployees in an appropriate unit, and, pursuant to Section 9 (a) of the
Act, were the exclusive representatives of all the employees in such
4 Board's Exhibit, No. 3.
s In addition , Finger submitted two traveling cards and one register check certifying
that the persons whose names appear thereon are affiliated with the Locals.
This number does not include Frank Schmidt who became foreman prior to July 12,
and ' two others whose names , although appearing on the application cards, do not appear
on the respondent 's pay roll.
DECISIONS AND ORDERS 883
unit for purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
3. The refusal to bargain
On July 9, 1937, officers of the Locals called at the office of the
respondent in order to negotiate an agreement covering all the pro-
duction employees. Ferzig being absent, the purpose of the visit
was stated to Morris Novgrod, office manager of the respondent, who
arranged a conference with Ferzig for July 12. The conference was
held in Ferzig's office and attended by Ferzig, Novgrod, Finger,
Zaleski, president of Local No. 8, Minnie Teitelbaum, secretary-
treasurer of Local No. 7, and Rose Glassgen, president of Local No.
7. The officers of the Locals told Ferzig that they represented a
majority of the employees of the respondent and that they "were
anxious to get together with him and see if we could not make a
union shop of it, have him recognize us as the bargaining agents."
They also assured him, that in view of the fact that the Locals had
a majority of the employees, they "felt confident that we could make
out an agreement to our mutual satisfaction without having any
difficulties whatsoever." Ferzig stated that it did not make any dif-
ference to him how many were represented and that he could not
see his way clear "to having the union in his shop in any way, man-
ner, shape or form." He further stated that he intended to run his
business in his own way and did not want other people to tell him
how to do so. According to Finger, Ferzig also said that "he would
move out of town where he would not be molested." The officers of
the Locals stated their intention of coming back to discuss the matter
further. Ferzig advised them that they could come back if they
desired but that it would not do any good. Ferzig testified that he
told the officers of the Locals that it was useless to bargain because he
contemplated moving out on December 1, and that they had better
leave the employees alone.
On the following day, David Magzamen and Guiseppi Rivoli were
discharged.7 These discharges were reported to Local No. 8 by a dele-
gation of employees and were thereafter called to the attention of
Local No 7. Because of the respondent's refusal to recognize and
deal with the Locals, and because of the discharges, it was decided
to call a, strike. Finger, Zaleski, and Miss Teitelbaum went to the
respondent's plant on the morning of July 15 and informed the
employees that a strike had been called. About 58 employees, in-
cluding both male and female employees, walked out.
A second meeting, arranged through the efforts of Zaritsky,
president of the International, was held on August 24. It was at-
7 See infra, Part III, C.
884 NATIONAL LABOR RELATIONS BOARD
tended by Ferzig, Novgrod, Zaleski, Finger, and Taplitz, the execu-
tive secretary of the Allied Hat Manufacturers Association. With
respect to this meeting, officers of the Locals testified to the following
effect: When the meeting began, Ferzig said that he could see no
reason for getting together because he was ready to sign a lease for
a plant out of town. Officers of the Locals argued that it was un-
necessary for him to move since "the New York market was the
market he wanted and the buyers concentrated here and it was best
for him to stay here and that he would get along with us all
right." Ferzig made no further mention of moving at the meeting,
and proceeded to make certain suggestions. He felt that he was not
in a position to pay higher rates until the beginning of December.
Zaleski proposed that the employees return to work at the old rates
until November, when new rates would be negotiated. This prop-
osition seemed to be satisfactory to Ferzig and it was tentatively
agreed upon. There was also a tentative agreement with respect to
the recognition of the Locals. Apparently, the only remaining diffi-
culty was Ferzig's stand that he would not take back certain of
the strikers. It was agreed that Taplitz would call Ferzig and
arrange another conference in order to come to a definite agreement
about the matters which were discussed. Taplitz attempted to
arrange such .a conference but was unsuccessful.
Ferzig denied that any agreement was reached at this meeting.
According to him, he told the officers of the Locals that even if he
did take back all except six of the employees, it would be only until
December 1, since he intended to move.
A third conference took place on September, 2 between Ferzig,
Zaleski, Finger, and Miss Teitelbaum. It lasted a short time. Ac-
cording to Zaleski, Ferzig stated, "Well, I have nothing else to talk
to you about. I am not going to sign up with your union because I
have signed a lease in New Jersey." Ferzig testified as follows :
"They wanted to talk to me about reopening the shop. I was talk-
ing to them a few minutes only. I told them the lease is signed and
I am moving now. That is about all. I went away."
.The respondent contends that at the July 12 conference it re-
quested proof of a majority and was refused. Ferzig testified,
"Mr. Finger told me he represented the majority in the shop. I told
him if that is the case he can go in the factory, call them all out and
then we will talk." Even assuming that such a request was actually
made, it is apparent that it was not pressed and that it was a matter
of complete indifference to the respondent whether or not the Locals
represented a majority. Ferzig admitted telling the officers of the
Locals that it was useless to bargain because he was moving. Fur-
thermore, there is not an iota of evidence that at the conferences
DECISIONS AND ORDERS 885
of August 24 and September 2, the respondent either challenged or
denied the claim that the Locals represented a majority.
It is clear that, although the respondent was prevailed upon on
several occasions to meet with officers of the Locals, it had no inten-
tion of making an honest attempt to arrive at an agreement. The
contemplated cessation of operations in New York, and the removal
to New Jersey did not relieve the respondent of its obligation to
bargain collectively with its employees. As set forth hereafter, the
respondent, in making preparation for such removal, was, in fact,
motivated by its hostility to the Locals and by its desire to avoid bar-
gaining with them. We find that the respondent on July 12, 1937,
and at all times thereafter, refused to bargain collectively with the
Locals as the representatives of its employees in respect to rates of pay,
wages, hours of employment and other conditions of employment.
B. The removal to New Jersey
The cessation by the respondent of operations in its New York plant
and the contemplated removal to Garwood, New Jersey, must be
viewed in the light of certain circumstances and events which reflect
the attitude of the respondent toward. unions and toward the organ-
ization of its employees.
The respondent has in the past encountered difficulties in its labor
relations. It has had to cope with two strikes, one in 1932 and one
in 1934. On both occasions, the strikes were broken and unionization
of the plant was prevented. The respondent was, however, obliged
to spend a considerable amount of money as a result of these
controversies.
Soon after the strike of 1934, Ferzig suggested the organization
of it "club" among the employees. The purposes of the Omahian
Social Club, as set forth in its bylaws," were "volntary mutual assist-
ance, and the fostering of a spirit of fraternity among the men." The
respondent's attorney was retained to act for the club and was paid
for his services with a check of the respondent. Simultaneously with
the organization of the club, an agreement" was drawn up by the
attorney for the respondent providing, in part, that the members shall
work for the respondent for a period of three years at terms and
prices to be fixed yearly by the respondent and the club; that the
question of discharges shall be considered by a duly authorized com-
mittee of the club; and that the respondent shall contribute to the
club a sum equal to the membership dues. The respondent was repre-
sented at meetings of the club by Novgrod and the foreman. Late
8 Board's Exhibit No. 6.
9 Board's Exhibit No. 7.
886 NATIONAL LABOR RELATIONS BOARD
in 1936 the club was dissolved because the respondent broke the agree-
ment by reducing the rates for piece work.
Jack Goldstein, who was the first president of the Omahian Social
Club and in the employ of the respondentuntil April qor , May 1937,
testified that during the existence of the club, Frank Virelli, one of
the respondent's employees, was discharged. No reason for his dis-
charge was given to the club committee. Goldstein, however, who
discussed the question with Novgrod, was told that Virelli was
discharged because he was active in union matters and was attempting
to organize the plant.
Jack Goldstein further testified that Novgrod spoke to him about
the Union a number of times and told him that "they are not afraid
of the union," and that " the union cannot harm them." On the oc-
casion, late in 1936, or early in 1937, Ferzig told him that,"if he was
going to be bothered by the union he would move out of town."
The organizational activities among the respondent's employees,
which finally culminated in the unionization of the plant, began in
May 1937. A number of witnesses testified with respect to the gen-
eral fear and apprehension which accompanied such activities. Em-
ployees who had joined Local No. 8 were afraid to reveal their mem-
bership lest they be discharged. Their fears proved not unfounded.
On June 15 Magzamen was discharged for the first time. He was
reinstated the following day but was warned, however, that he had
"better stop talking." Early in July Novgrod and Glinn, who was
then foreman, attempted to learn from Rivoli the names of the em-
ployees who urged him to sign a union application. On July 13,
the discharges of Magzamen and Rivoli took place.-
In the middle of August, the respondent made an unsuccessful
attempt to secure a contempt order against a number of strikers on
the basis of an injunction granted in 1934.
Shortly thereafter, on September 3, the respondent signed a lease
at Garwood, New Jersey, and began to move its machinery.
These incidents all point to the conclusion that the respondent
was determined to prevent the unionization of its plant at any cost.
It appears that, unable to cope with this strike as successfully as in
the past, the respondent finally resolved to move out of New York
City.
It is the contention of the respondent that it had intended to move
for a considerable time prior to the present strike, because it did not
have sufficient space for its operations in the New York plant. Fer-
zig testified that he had been negotiating for a new plant in various
places outside of New York City, but that the buildings he had
examined he had found too small for his purposes. Nevertheless,
10 See infra, Part III, C.
DECISIONS AND ORDERS 887
late in April or early in May 1937, the respondent subleased a part
of its plant in New York City, and incurred expenses in recondi-
tioning the remaining part for the purpose of continuing its opera-
tions. The lease on the New York plant expired about that time,
and the respondent renewed it for a period of two years. Such
preparations were manifestly inconsistent with a continued intention
to move. Whether or not the respondent intended moving prior
thereto, it is apparent that at that time it decided to remain in New
York. Nor can we give any credence to the respondent's contention
that it was "cramped" in New York City in the light of the sublease
of part of its plant. It is also significant that the respondent admit-
tedly did not search for another plant from March until a few days
prior to the strike of July 15.
The respondent asserts further that the factor which finally induced
it to sign a lease in Garwood, New Jersey, was the low rental. The
rental for the plant in New York City amounted to $6,000 per year,
less $2,000 per year received by the respondent for the part subleased.
At the time of the hearing, the respondent had not yet subleased the
remaining part which was used in its operations, thus being subject
to a possible liability for the payment of rent for a period of about
a year and seven months. The rental on the plant at Garwood, New
Jersey, is $3,150 per year, or $850 less than the rental paid in New
York. Considering, however, the respondent's contingent liability
for the rent on the New York plant plus the expenses involved in
moving, the possibility of saving rent cannot seriously be regarded
as a factor motivating the respondent to move.
We find that the respondent, in closing its plant in New York City
and preparing to remove operations to Garwood, New Jersey, was
motivated by its hostility to the Locals, its desire to avoid collective
bargaining, and by its intention to discourage membership ' in the
Locals, and thus engaged in unfair labor practices within the meaning
of Section 8 (1) of the Act.
C. The discharges of Magzamen and Rivoli
David Magzamen began work for the respondent as a finisher in
July 1936. He had become a member of Local No. 8 two years prior
to that time.
After the reconditioning of its plant late in April or early in May
1937, the respondent instituted lower rates for piece work. The em-
ployees thereupon sent a committee to Ferzig to discuss the matter.
Ferzig suggested that the employees proceed at the new rates for a
period of ten days. At the end of that period, the committee again
reported the dissatisfaction of the employees to Ferzig. Ferzig re-
fused to discuss the question any further and declared that he "did
not want any more committees."
67573-38-vol [v-57
888 NATIONAL LABOR RELATIONS BOARD
Shortly thereafter, Magzamen began speaking to certain other
employees about organizing the plant. He pointed out to them that
"the only way is we should organize and that is the only way we can
make a living, support our families, otherwise we are lost." He,
succeeded in enlisting the aid of a few men and together they per-
suaded other employees to sign applications for membership in Local
No. 8.
On June 15, at about 2: 30 in the afternoon, when he had finished
his pending work, Magzamen approached Glinn, who was foreman at
that time, and asked him for additional work. Glinn said : "You are
fired." When pressed for a reason, Glinn said : "You have a big
mouth, going around talking, organizing the men." Magzamen was
taken back the next day when he returned for his pay. Glinn warned
him, however, by saying, "Now, listen, you had better stop talking.
T am a new man, myself, and here to make a living and do not want
to see any trouble in the shop."
At the time of this discharge, nothing was said to Magzamen about
his work. Magzamen further testified that prior to his organizational
activities he had met with no particular unpleasantness in his work.
A few hats, defective in one respect or another, would be returned to
him for refinishing. But this was not unusual and happened to all
the finishers at the respondent's plant, particularly in view of the low
quality of the hat bodies supplied. Magzamen testified, however, that
after his discharge, Glinn "was bothering me right along, shipping
me back dozens of hats."
Toward the end of June, Glinn was replaced as foreman by Frank
Schmidt, who had himself previously applied for membership in
Local No. 8 and was active on various committees of the employees.
On the morning of July 13, after the first attempt at collective bar-
gaining by officers of the Locals, Schmidt told Magzamen that Nov-
grod had given instructions not to assign him any more work and
that he was discharged. He could not tell Magzamen the reason for
the discharge but suggested that he ask Novgrod. Schmidt told him
that as far as he knew his work was all right. He said: "T do not
know what is going on, you had better speak to Mr. Novgrod. He
told me not to give you any work, and Mr. Rivoli." Novgrod was
equally vague as to the reason for Magzamen's discharge. Nov^Trod
showed him a dozen of his hats which were all trimmed and which
Magzamen had finished about a week before. Magzamen testified as
follows with respect to the conversation that took place:
... I asked him, "what is the matter, Mr. Novgrod ?" [He
said] "Well, I do not like them, that is all there is to it "
I asked, "What is the matter with them?" Well, he was turn-
ing here and there and walked into the office.
DECISIONS AND ORDERS 889
Q. He did not give you any answer?
A. No. I asked him, I see Mr. Ferzig. He said it would
not help me any. That is about all. I walked out.
Q. Did you ask him the reason for your discharge?
A. I asked him. He did not say anything `"You do not be-
long here," something like that. "We do not want you here,"
that is what he said.
Guiseppi Rivoli began work for the respondent as a finisher in
January 1937. He worked about three months and then left in order
to accept employment in a hat plant in Plainfield, New Jersey. After
he had worked for about a month in Plainfield, Glinn sent him a
letter requesting him to return to work for the respondent. Rivoli
testified that Novgrod was glad to see him back at the plant.
It was at this time that the plant was reconditioned and new rates
were introduced by the respondent. Rivoli became dissatisfied with
the new rate system because it prevented the finishers from averaging
as much as theretofore, and, after working for a period of about two
weeks, returned to his former job in Plainfield. At the end of two
weeks he again returned to the employ of the respondent, where he
remained continuously until his discharge.
Rivoli testified that he never experienced any difficulties because
of his work. Furthermore, Glinn assigned him samples and odd
hats which required particular attention.. He was apparently re-
garded by Glinn as an expert finisher.
Rivoli became interested in joining Local No. 8 when he resumed
work for the respondent for the third time. He found it difficult
to obtain information because the members of Local No. 8 were
afraid to talk. Finally he asked Schmidt, who had not yet been
elevated to the position of foreman. Schmidt furnished him with
an application card, which he signed.
One incident to which Rivoli testified is particularly significant.
About a week or ten days before he was discharged, and while Glinn
was still foreman, the latter, accompanied by Novgrod, approached
him and asked, "Who told you to sign application, to join the union?"
Rivoli denied that anyone told him. Glinn insisted, "Don't be
scared. Tell me." He said that he knew of his (Rivoli's) appli-
cation because somebody "squealed." Glinn pressed him further,
with the reassurance that he "won't tell anybody." In response to
Rivoli's query, "Why you want to know those men?" Glinn said,
"Well, you know, Joe, I like to know . . . Those men have to get
fired." Rivoh replied, "Listen, I quit job, but you never know from
my mouth who told me to join the union." The following morning,
Glinn again persisted in questioning Rivoli as to the men who
told him to join the union.
890 NATIONAL LABOR RELATIONS BOARD
Shortly thereafter Glinn was replaced by Schmidt as foreman
and about a week later, on July 13, Rivoli, as well as Magzamen,
was discharged. According to Rivoli, Schmidt came up to his bench
and said, "Joe, I am sorry, I got to tell you, I got to fire you."
Schmidt assured him that he had no trouble with his work and
that he was sorry to lose him, but that he received orders from
Novgrod to discharge him. As in Magzamen's case, Novgrod said,
"I don't like your work", and showed him a dozen of his hats.
Rivoli testified that he requested Novgrod to compare his hats with
those finished by someone else and said, "What difference you find
in this dozen and that dozen? And take two hats this way and
mix them up. Show me the better hat over here now." Rivoli
admitted that some of the hats were defectively finished. He testi-
fied that he picked up the bad ones himself and showed them to
Novgrod. He explained, however, that those hats were made of
very poor material, that they were defective when originally
finished and were turned in the hope that the other side would be
satisfactory, but that they were faulty even then. Rivoli said to
Novgrod, "Listen here, this is not the reason you fire a man." But
Novgrod simply said, "No, no, you got to go."
The respondent contends that both Magzamen and Rivoli were dis-
charged because of poor workmanship. According to Ferzig, Magza-
men was the worst finisher in the plant. The testimony of Schmidt
is somewhat contradictory. He stated that if Magzamen and Rivoli
"want to work good, then they can produce good hats, that I can
guarantee." He also asserted, however, that they were the worst
finishers of the whole department. Novgrod testified that Magzamen
and Rivoli were neither good workers nor fast workers and that
he had for a long time been aware of Magzamen's poor workman-
ship. Cofone, the assistant foreman, testified that he encountered
difficulty with Rivoli's hats two or three days after Rivoli first began
work.
Upon all the evidence, credence cannot be given to the respond-
ent's contention that Magzamen and Rivoli were discharged because
of inefficiency. Pay rolls of the respondent show that the pay of these
two compared very favorably with the pay of the other finishers
in the plant and was, in fact, greater than the pay of Schmidt before
he became foreman. The comparatively high pay of both Magzamen
and Rivoli is inconsistent with their alleged poor workmanship. Hats
which were finished badly due to the fault of the finisher were
returned for refinishing without additional pay. It is very unlikely,
therefore, that a finisher could have earned a satisfactory wage had
he been required very often to refinish hats on his own time.
The contention of incompetency is further inconsistent with the
duration of Magzamen's employment and with the fact that Rivoli
DECISIONS AND ORDERS 891
was rehired several times. Cofone testified that in the latter part of
June another finisher was discharged two days after he was hired
when Glinn discovered that his work was poor. It is difficult to
believe that Magzamen and Rivoli would not have met a similar
fate long prior to July 13 if their work were as inefficient as con-
tended by the respondent.
On the basis of all the evidence, we find that Magzamen and Rivoli
were in fact discharged because of their affiliation with Local No. 8.
The respondent thereby discriminated in regard to hire and tenure
of employment in order to discourage membership in a labor organi-
zation, and interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the aforesaid activities of the respondent, occurring
in connection with the operations of the respondent described in
Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to
lead and have led to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
David Magzamen averaged about $29.00 a week for the first three
months of 1937 and about $20.00 a week for June 1937. He has been
unemployed since his discharge. Guiseppi Rivoli averaged about
$25.00 during the time that he was employed by the respondent.
Since his discharge he has obtained irregular employment in a hat
renovating shop in Newark, New Jersey, earning $5.00 a day. His
earnings from the date of his discharge to the date of the hearing
amounted to approximately $100.00. Both Magzamen and Rivoli
desire to return to their former positions in the employ of the
respondent.
We find that David Magzamen and Guiseppi Rivoli have not,
since their discharges, obtained any other regular and substantially
equivalent employment. We will, therefore, order that the respond-
ent offer them reinstatement and, in addition, give them back pay
from the date of their discharge until the offer of reinstatement, less
any amount earned by them in the meantime.
We have found that the respondent's production workers struck
on July 15, 1937, owing to the respondent's refusal to bargain collec-
tively and the discharges of Magzamen and Rivoli. We do not know
whether the respondent has since the date of the hearing resumed
operations either in its plant at New York City or in its plant at
Garwood, New Jersey, or at any other place. However, the respond-
ent was, or will be, upon resuming operations, under a duty to rein-
892 NATIONAL LABOR RELATIONS BOARD
state the strikers, upon application, to their former or equivalent
positions and to restore the status quo which existed prior to the
strike. Therefore, we will order that the respondent, at the time
it resumes operations, or immediately, if it has already resumed
operations, offer to those employees who were on strike on July 15,
1937, reinstatement to their former or equivalent positions, without
prejudice to their seniority and other rights or privileges.
If after reinstating its employees pursuant to our order and dis-
missing employees hired since the commencement of the strike, the
respondent determines that the services of any of its staff as then
constituted are not required, it may reduce its staff, provided the
reduction is made without discrimination against any employees
because of their union affiliation or activities, following a system of
seniority to such extent as has heretofore been applied in the conduct
of the respondent's business, subject to any modification introduced
by agreement with the Locals.
THE PETITION
In view of the Board's findings in Section III-A above, as to the
appropriate bargaining unit and the designation of the Locals by
a majority of the respondent's production employees as their repre-
sentatives for the purposes of collective bargaining, it is not neces-
sary to consider the petition of the Locals for certification of repre-
sentatives. Consequently the petition for certification will be
dismissed.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the
entire record in the proceeding the Board makes the following
conclusions of law :
1. United Hatters, Cap and Millinery Workers International
Union, Local Nos. 7 and 8, are labor organizations, within the mean-
ing of Section 2 (5) of the Act.
2. All the production employees of the respondent, excepting super-
visory, clerical, and shipping employees, constitute a unit appropriate
for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the Act.
3. United Hatters, Cap and Millinery Workers International
Union, Local Nos. 7 and 8, were on July 12, 1937, and at all times
thereafter have been, the exclusive representatives of all the employees
of such unit for the purposes of collective bargaining, within the
meaning of Section 9 (a) of the Act.
4. The respondent, by refusing to bargain collectively with United
Hatters, Cap and Millinery Workers International Union, Local Nos.
DECISIONS AND ORDERS 893
7 and 8, on July 12, 1937, and thereafter, has engaged and is engaging
in unfair labor practices, within the meaning of Section 8 (5) of the
Act.
5. The strike of the employees on July 15, 1937, was a labor dispute
within the meaning of Section 2 (9) of the Act.
6. The respondent, by discriminating in regard to the hire and
tenure of employment of, David Magzamen and Guiseppi Rivoli, and
thereby discouraging membership in a labor organization, has en-
gaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
7. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
On 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 Omaha Hat
Corporation and its officers, agents, successors, and assigns, shall:
1. Cease and desist from 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 con=
certed activities for the purpose of collective bargaining, or other
mutual aid and protection, as guaranteed in Section 7 of the Act;
2. Cease and desist from refusing to bargain collectively with
United Hatters, Cap and Millinery Workers International Union,
Local Nos. 7 and 8, as the exclusive representatives of all its produc-
tion employees, excepting supervisory, clerical, and shipping
employees ;
3. Cease and desist from discouraging membership in United
Hatters, Cap and Millinery Workers International Union, Local Nos.
7 and 8, or any other labor organization of its employees, by dis-
charging and refusing to reinstate its employees, or otherwise dis-
criminating in regard to their hire or tenure of employment or any
term or condition of their employment;
4. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to David Magzamen and Guiseppi Rivoli, upon resuming
operations, or immediately, if operations have already been resumed,
894 NATIONAL LABOR RELATIONS BOARD
full reinstatement to their former positions without prejudice to
their seniority or other rights and privileges;
(b) Make whole David Magzamen and Guiseppi Rivoli for any
loss of pay they have suffered by reason of their discharge by pay-
ment to each of them, respectively, of a sum of money equal to that
which he would normally have earned as wages from the date of his
discharge to the date of the offer of reinstatement pursuant to this
order, less any amount earned by him during such period;
(c) Upon resuming operations, or immediately if operations have
already been resumed, offer, upon application, to those employees
who were on strike on July 15, 1937, full reinstatement to their
former positions, without prejudice to their seniority or other rights
or privileges;
(d) Make whole all employees who were on strike on July 15, 1937,
for any losses they may suffer by reason of any refusal of their appli-
cation for reinstatement in accordance with paragraph 4 (c) herein,
by payment to each of them respectively, of a sum equal to that which
each of them would normally have earned as wages during the period
from the date of any such "refusal of their application to the date of
reinstatement, less the amount, if any, which each, respectively, earned
during said period;
(e) Upon request, bargain collectively with United Hatters, Cap
and Millinery Workers International Union, Local Nos. 7 and 8, or,
in the event that it resumes or has resumed operations at a place not
within the territorial jurisdiction of Local Nos. 7 and 8, the agents
duly authorized therefor by United Hatters, Cap and Millinery.
Workers International Union, as the exclusive representatives of all
its production employees, excepting supervisory, clerical, and ship-
ping employees, in respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment;
(f) Post notices in conspicuous places at its plant or plants in
operation or at its plant or plants where operations will be resumed,
stating that the respondent will cease and desist in the manner afore-
said; and maintain said notices for at least thirty (30) consecutive
days from the date of posting;
(g) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this order what steps the re-
spondent has taken to comply herewith.
The petition for certification of representatives, filed by United
Hatters, Cap and Millinery Workers International Union, Local Nos.
7 and 8, is hereby dismissed.