Sheba Ann Frocks, Inc.

National Labor Relations Board - Board Decisions

Feb 1, 1938

5 N.L.R.B. 12 (N.L.R.B. 1938)

In the Matter of SHEBA ANN FROCKS, INC. and INTERNATIONAL LADIES'
GARMENT WORKERS' UNION OF AMERICA, LOCALS 121 AND 204
Case No. C-186.-Decided February 1, 1938
Dress Manufacturing Industry-Unit Appropriate for Collective Bargaining-
Representatives: designated by Decision and Certification-Discrimination:
discharges, following end of business season, held not discriminatory; charges
dismissed-Collective Bargaining: previous refusal to negotiate with repre-
sentatives of employees where request by representatives inadequate, held not
to relieve employer from obligation to bargain upon subsequent union request;
refusal to negotiate with representatives after certification by Board.
Mr. Karl H. Mueller and Mr. L. N. W. Wells, for the Board.
Mr. Emil Corenbleth, of Dallas, Tex., for the respondent.
Mr. Jack Johannes, of Dallas, Tex., and Guthrie cC Guthrie, by
Mr. Jim Guthrie, of Dallas, Tex., for the Union.
Mr. Howard Lichtenstein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges having been filed by International Ladies' Garment Work-
ers' Union of America, Locals 121 and 204, herein collectively called
the Union, the National Labor Relations Board, herein called the
Board, by Edwin A. Elliott, Regional Director for the Sixteenth
Region (Fort Worth, Texas), issued and duly served its complaint
dated May 10, 1937, against Sheba Ann Frocks, Inc., Dallas, Texas,
the respondent herein, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On May 15, 1937, the respondent filed its answer
to the complaint in which it denied that it had engaged in or was
engaging in the unfair labor practices alleged therein. At the same
time it filed a motion to dismiss the complaint.
Pursuant to notice served upon all the parties, a hearing was held
in Dallas, Texas, from May 27 through May 31, 1937, before Emmett
1 By order of the Board dated May 11, 1937, this proceeding was consolidated for the
purposes of hearing with a proceeding brought pursuant to a petition filed by the Union
requesting an investigation and certification of representatives
12
DECISIONS AND ORDERS 13
P. Delany, the Trial Examiner duly designated by the Board.
The Board, the respondent, and the Union were represented by
counsel, participated in the hearing, and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues.2
On June 9, 1937, the Trial Examiner filed his Intermediate Re-
port, in which he found that the respondent had engaged in and
was engaging in the unfair labor practices alleged in the complaint,
except that he recommended the dismissal of the complaint in so far
as it alleged the discriminatory' discharges of Martha Moody, Jewel
Embrey, Lora Walker, Kathryn Garrett, Zeeva Parks, Velina Lewis,
and May Maxwell.
On, June 22, 1937, the respondent filed exceptions to the Inter-
mediate Report and to various rulings of the Trial Examiner, and
on July 1, 1937, presented oral argument thereon before the Board.
A supplemental charge having been filed by the Union, the Board,
by its Regional Director above named, issued and duly served its sup-
plementary complaint dated November 4, 1937, against the respond-
ent, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning
of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act.
With respect to the unfair labor practices, the supplementary com-
plaint, in substance, alleged that on July 23, 1937, the Board
certified the Union as the exclusive representative of all the re-
spondent's production employees for the purposes of collective bar-
gaining ; and that on July 26, 1937, and at all times thereafter, the
respondent, although requested, refused to bargain collectively with
the Union. On November 10, 1937, the respondent filed its motion
to dismiss the complaint of May 10, 1937, together with the supple-
mentary complaint of November 4, 1937, on the grounds stated in its
original motion to dismiss dated May 15, 1937. As additional
grounds for dismissal, the respondent alleged that the Certification
of Representatives issued by the Board on July 23, 1937, is not a final
order and that charges predicated thereon are unwarranted and not
binding upon the respondent. On the same day the respondent filed
its answer to the supplementary complaint in which it denied that it
had engaged in or was engaging in the unfair labor practices
alleged therein.
Pursuant to notice served on all parties, a hearing was held in
Dallas, Texas, on November 17 and 18, 1937, before,William Griffin,
the Trial Examiner duly designated by the Board. The Board, the
2 At the commencement of the hearing, the Trial Examiner granted the motions of coun-
sel for the Board to amend the complaint for the purpose of including allegations with
respect to the discriminatory discharge of 17 employees and for the purpose of striking
allegations with respect to a similar discharge of six employees The complaint , as thus
amended, alleged the discriminatory discharge of 30 employees.
14 NATIONAL LABOR RELATIONS BOARD
respondent, and the Union were represented by counsel, participated
in the hearing, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence,
bearing upon the issues. At the commencement of the hearing the
respondent renewed its motion to dismiss the complaint. This
motion was denied by the Trial Examiner.
The Board has reviewed the rulings of both Trial Examiners on
motions and on objections to the admission of evidence and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed. The Board has also considered the respondent's exceptions
to the Intermediate Report, and for the reasons and to the extent
hereinafter set forth, they are sustained.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 3
Sheba Ann Frocks, Inc., was incorporated in Texas by its presi-
dent, Jack Ginsberg, in January 1935, and since then has maintained
its place of business in Dallas, Texas, where it manufactures ladies'
silk, cotton, rayon, and woolen dresses. In addition, the respondent
engages in contracting or furnishing labor to other dress manufac-
turers in Dallas. Under such arrangements, these manufacturers
furnish material, already cut, to the respondent, which returns the
finished dresses after having the material sewn by its employees.
The respondent's equipment consists of one cutting table, ten press-
ing irons, and about 52 machines, all located in one large room. On
January 30, 1937, 59 persons were employed, consisting of seven
pressers, 31 operators, three special operators, two cutters, eight fin-
ishers, two inspectors, two pinners, two errand boys, one designer,
and one forelady. Plant operations are all carried on in the one room,
the work of the various employees being closely coordinated.
In 1936 the gross volume of the respondent's sales totaled $68,799.40,
of which $21,200.70 represented shipments from Texas to Louisiana,
Arkansas, Oklahoma, and other southwestern States, and $20,997.12
represented contract work for other Dallas dress manufacturers. In
the same year the respondent purchased materials valued at
$18,519.87, of which 95 per cent were shipped from points outside the
State.
Two of the manufacturers for whom the respondent does contract
work testified that over 90 per cent of the materials purchased by
them and supplied to the respondent are shipped from points outside
the State. Between 65 and 70 per cent of the output of the Marcy
8 These findings are repeated from the Decision and Certification of Representatives
issued by the Board on July 23, 1937, which were predicated upon the record of the first
hearing conducted in this case. (See 3 N. L. R B. 97 )
DECISIONS AND ORDERS 15
Lee Manufacturing Company, which in 1936 supplied the respondent
with the greater part of its contract work, was shipped to some 25
States throughout the country. It was estimated by the president of
that company that an equal percentage of the dresses received from
the respondent was likewise shipped outside the State of Texas.
II. THE ORGANIZATIONS INVOLVED
Locals 121 and 204 of the International Ladies' Garment Workers'
Union of America are labor organizations. Local 121 limits its
membership to production workers, exclusive of supervisory em-
ployees, shipping clerks, and cutters employed in the manufacture of
the types of dresses produced by the respondent, and Local 204 limits
its membership to cutters employed in similar manufacturing. Both
locals have joined in instituting the proceedings through the Inter-
national Ladies' Garment Workers' Union of America, the inter-
national body of which they are constituents.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain with the Union
As we have found in our Decision and Certification of Representa-
tives issued on July 23, 1937,4 which was predicated upon the evidence
submitted both in support of the petition requesting an investigation
and certification of representatives and in connection with this pro-
ceeding, the production employees of the respondent, exclusive of
supervisory employees, constitute a unit appropriate for the purposes
of collective bargaining. We further found, and the record so dis-
closed, that during the month of January 1937, 32 of the respondent's
employees had signed cards authorizing the Union to represent them
for the purposes of collective bargaining with the respondent. This
represented a majority of the respondent's production employees.
The Union contends that on January 30, 1937, John Ratekin,
manager of the Union locals, requested Ginsberg, president of they
respondent, to negotiate with him as the representative of the
production employees. Ratekin testified that he called upon Gins-
berg on the morning of January 30, and when he told Ginsberg that
he represented his employees, Ginsberg stated that he was not
interested and that he would not consider the Union under any
circumstances. Ratekin further testified that he did not thereafter
attempt to meet with Ginsberg, feeling that it would be "hopeless".
Upon cross-examination, Ratekin testified that his conversation
with Ginsberg lasted five or ten minutes, and that it was the only
time within a period of a year and a half that he had spoken to him
4 3 N. L. R. B. 97.
16 NATIONAL LABOR RELATIONS BOARD
about the Union. Ratekin admitted having previously stated, upon
being asked whether he attached much importance to this visit, that
"It was a friendly visit, that's all."
Although Ginsberg admitted that Ratekin had called at his
office on January 30, he denied that the representation of the re-
spondent's employees had been discussed. From all the evidence
we are satisfied that Ratekin did not seriously attempt to confer
with the respondent on that day. Indeed, the evidence shows that
Ratekin, who happened to be visiting in the building, merely stopped
off at the respondent's plant for a social call.
Considering the fact that the Union called a strike on February,
11, 1937, in part because the respondent refused to negotiate, we
cannot understand the Union's failure to attempt again to negotiate
with the respondent, especially since Ratekin, himself, did not, attach
particular importance to his visit of January 30. From all the
evidence, we are of the opinion that it was incumbent upon the Union
to have used greater diligence or to have made some effort to meet
with the respondent immediately before or after it called the strike.
The evidence shows that immediately following the strike of Febru-
ary 11, the Union was always ready and willing to negotiate with
the respondent. However, the Union never, by word or act, apprised
the respondent of its desires.
We find that the respondent did not refuse to bargain with the
Union on or about January 30, 1937.
As we have stated above, the Board on July 23, 1937, certified the
Union as the exclusive representative of the respondent's production
employees for the purposes of collective bargaining. On July 26,
1937, the Union, by registered letter, notified the respondent that a
committee had been chosen to meet with it, and requested the respond-
ent to fix a time and place in order to proceed with negotiations. The
respondent admits that this letter was never answered, and that it
unqualifiedly refused and still refuses to bargain with the Union.
The respondent takes the position that it is not required to bargain
with the Union until after the Board renders this decision on the
issues of the original complaint, and after this decision and the Deci-
sion and Certification of Representatives of July 23, 1937, are reviewed
by the Courts. The issuance or withholding of a decision on a com-
plaint cannot relieve the respondent of its obligation to observe the
provisions of the Act. A finding that the respondent has not refused
to bargain collectively cannot condone a subsequent refusal to bargain
within the meaning of the. Act.
We find that, after the issuance of the Certification of Representa-
tives, the respondent, although requested by the Union, refused, and
DECISIONS AND ORDERS 17
still refuses, to bargain collectively with the Union as the exclusive
representative of its employees.
B. The discharges
The complaint, as amended at the first hearing in this proceeding,
alleged that between December 15, 1936 and February 13, 1937, the
respondent discharged 30 employees for the reason that they joined
and assisted the Union. The record indicates that between February
1 and February 11, 1937, the majority of these employees were either
laid off or discharged. On February 11, because of this reduction in
the number of Union employees, and because the respondent had
allegedly refused to negotiate on January 30, the Union called a
strike which presumably was still in effect at the time of the second
hearing herein.
Although the record indicates that the respondent did not look
with favor upon the Union activity which had succeeded in enlisting
the majority of its employees, the evidence fails to establish that the
30 employees were discriminatorily discharged. The respondent con-
tends that the number of its employees was reduced in order to meet a
drop in production attendant upon the termination of its business
season. There is little in the record to controvert this contention.
An analysis of the respondent's pay rolls, introduced into evidence,
shows that on January 30, 1937, of the 56 production employees work-
ing, 33 were members of the Union and 23 were not affiliated. For
the week ending February 9, 1937, of the 34 employees still working,
19 were Union members. It is clear that nonunion employees were
laid off indiscriminately with Union employees.
In the light of all the evidence, we find that the discharge of the
30 employees was not because of their Union activity, and we shall
dismiss the complaint in so far as such discriminatory discharges are
alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
During the first hearing in this case, Ginsberg testified that the
strike had reduced the output of the respondent by two-thirds. No
evidence was adduced at the second hearing to indicate that the effect
of the strike, which was continuing at that time, had changed.
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion 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.
18 NATIONAL LABOR RELATIONS BOARD
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. Locals 121 and 204, International Ladies' Garment Workers'
Union of America, are labor organizations, within the meaning of
Section 2 (5) of the Act.
2. By refusing on July 26, 1937, and continuing to refuse at all
times thereafter to bargain with Locals 121 and 204, International
Ladies' Garment Workers' Union of America, as the exclusive repre-
sentatives of the employees in the appropriate unit, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (5) of the Act.
3. By its refusal to bargain collectively with its employees as
above described, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (1) of the
Act.
4. The aforesaid unfair labor practices are unf air labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon_the basis of the findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
Sheba Ann Frocks, Inc., Dallas, Texas, and its officers, agents, suc-
cessors, and assigns shall :
1. Cease and desist:
(a) From refusing to bargain collectively with Locals 121 and 204,
International Ladies' Garment Workers' Union of America, as the
exclusive representatives of its production employees at its Dallas,
Texas, plant, exclusive of supervisory employees;
(b) From in any manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted 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 Locals 121 and 204,
International Ladies' Garment Workers' Union of America, as the
exclusive representative of its production employees at its Dallas,
Texas, plant, exclusive of supervisory employees, in respect to rates
of pay, wages, hours of employment, or other conditions of employ-
ment ;
DECISIONS AND ORDERS 19
(b) Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of thirty (30) consecu-
tive days, stating that the respondent will cease and desist as afore-
said ;
(c) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this order what steps
the respondent has taken to comply herewith,'
And it is further ordered that the allegations in the complaint
that the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (3) of the Act, be, and
they hereby are, dismissed.
[SAME TITLE]
AMENDMENT TO DECISION AND ORDER
March, 5, 1938
On February 1, 1938, the National Labor Relations Board issued a
Decision in this case in which, inter alia, it dismissed the complaint
in so far as it alleged that the respondent had engaged in and was
engaging in unfair labor practices, within the meaning of Section
8 (3) of the National Labor Relations Act.
The National Labor Relations Board, having further considered
the matter and finding that its Decision may be clarified by amend-
ment, acting pursuant to Section 10 (d) of the National Labor Rela-
tions Act, 49 Stat. 449, hereby amends Section III (B) of its findings
by striking out the last paragraph thereof, which reads as follows :
In the light of all the evidence, we find that the discharge of
the 30 employees was not because of their Union activity, and
we shall dismiss the complaint in so far as such discriminatory
discharges are alleged.
and substituting therefor, the following :
The record amply shows that the 30 employees were laid off
at the conclusion of the respondent's business season. Indeed,
the respondent's answer alleged, and its forelady testified that
most of these employees were called back to work upon resump-
tion of operations. It is clear that the respondent still con-
sidered the persons laid off as employees whose work had ceased
only temporarily, due to the slack season. In the light of all the
evidence, we find that the 30 employees were not discriminatorily
discharged, but were laid off for business reasons pending the full
resumption of the respondent's business operations. We shall
therefore dismiss the complaint in so far as such discriminatory
discharges are alleged.