Stein-Way Clothing Co.

National Labor Relations Board - Board Decisions

Mar 31, 1953

103 N.L.R.B. 1314 (N.L.R.B. 1953)

1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively , upon request, with INTERNATIONAL AssOCIA-
TIOc OF MACHINISTS , AFL, as the exclusive representative of all our em-
ployees in the bargaining unit described below, with respect to rates of pay,
wages, hours of employment , and other conditions of employment, and if
an understanding is reached , embody such understanding in a signed agree-
ment. The bargaining unit is: -
All production and maintenance employees , employees in the shipping,
inspection , and heating departments , and janitors , at our plant in Bing-
hamton, New York, but excluding all office and clerical employees , guar ds,
professional employees , and all supervisors as defined in the Act.
STOW MANUFACTURING COMPANY,
Employer.
Dated ------------------------------ By ---------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date hereof,
and must not be altered, defaced, or covered by any other material.
MOE SCHARFSTEIN & PHIL SCHARFSTEIN , D/B/A STEIN-WAY CLOTHING
COMPANY and UNITED TEXTILE WORKERS OF AMERICA, AFL. Case
No. 10-CA-1380. March 31, 1953
Decision and Order
On January 12, 1953, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices within the meaning of Section 8 (a) (1) and (5) of the Act,
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondents and the charg-
ing Union filed exceptions to the Intermediate Report with support-
ing briefs.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board herebyiorders that the Respondents, Moe Scharfstein & Phil
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Herzog and Mem-
bers Houston and Murdock].
103 NLRB No. 142.
STEIN-WAY CLOTHING COMPANY 1315
Scharfstein, d/b/a Stein-Way Clothing Company, Johnson City,
Tennessee, their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Textile Workers
of America, AFL, as the exclusive representative of all their employees
in the appropriate unit with respect to rates of pay, wages, hours of
employment, or other conditions of employment, and failing or refus-
ing to furnish the Union a list of employees with their job classifica-
tions, dates of hire, and rates of pay, information as to piece-rate com-
putation, and studies in connection with workload grievances.
(b) Threatening employees concerning their union activities.
(c) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist labor organizations,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or
all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3) 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 United Textile Workers
of America, AFL, as the exclusive representative of the employees in
the appropriate unit, furnish the Union a list of employees with their
job classifications, dates of hire, and rates of pay, information as to
piece-rate computation, and studies in connection with workload
grievances, and embody in a signed agreement any understanding
reached.
(b) Post at their plant in Johnson City, Tennessee, copies of the
notice attached hereto and marked "Appendix A." 2 Copies of said
notice, to be furnished by the Regional Director for the Tenth Region,
shall, after being duly signed by the Respondents' representative, be
posted by the Respondents immediately upon receipt thereof, and be
maintained by them for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to their em-
ployees are customarily posted. Reasonable steps shall be taken by the
Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
2 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Decision and Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondents discriminated in
regard to the hire and tenure of employment of Myrtle Johnson within
the meaning of Section 8 (a) (3) of the Act.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE wu,L bargain upon request with UNITED TEXTILE WORKERS
OF AMERICA, AFL, as the exclusive representative of all employees
in the bargaining unit described herein with respect to rates of
pay, hours of employment, or other conditions of employment,
and embody in a signed agreement any understanding reached.
The bargaining unit is :
All production and maintenance employees at the Johnson
City, Tennessee, plant, including the shipping clerk, janitor,
and machine operators Peake and Campbell, but excluding
office, clerical, and professional employees, guards, and super-
visors as defined in the Act.
WE wuLL furnish the union upon request a list of employees with
their job classifications, dates of hire, and rates of pay, information
as to piece-rate computation and studies in connection with work-
load grievances.
WE wILL NOT threaten employees concerning their union activi-
ties.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist UNITED
TEXTILE WORKERS OF AMERICA, AFL, or any other labor organ.
zation, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities except to the extent
that such right may be affected by an agreement requiring mem-
STEIN-WAY CLOTHING COMPANY 1317
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
MOE SCHARFSTEIN & PHIL SCHARFSTEIN,
d/b/a STEIN-WAY CLOTHING COMPANY,
Employer.
By -------------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
The complaint herein alleges that the Respondents have violated Section 8
(a) (5) of the National Labor Relations Act, as amended, 61 Stat. 136, by
refusing to bargain with the Union; Section 8 (a) (3) by failing and refusing
to reinstate or reemploy Myrtle Johnson; and Section 8 (a) (1) by said alleged
acts and by interrogating and threatening its employees concerning their union
membership, activities, and sympathies. The answer denies the allegations of
unfair labor practices.
A hearing was held before me at Johnson City, Tennessee, on December 15,
1952. Pursuant to leave granted to all parties, briefs were thereafter filed by
General Counsel and the Respondents.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE RESPONDENTS ' BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Respondents are a partnership with prin-
cipal place of business at Johnson City, Tennessee, where they manufacture
United States Army uniform trousers; that they annually manufacture and ship
to the United States Government trousers valued at more than $150,000. It was
admitted and I find that the Respondents are engaged in commerce within the
meaning of the Act.
It was admitted and I find that the Union is a labor organization within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The alleged violation of Section 8 (a) (5)
After an election conducted by the Board on June 12, 1951, the Union was
on June 20 certified by the Board as the exclusive representative for the pur-
poses of collective bargaining of the following classifications of employees :
All production and maintenance employees at the Respondent's Johnson
City, Tennessee, plant, including the shipping clerk, janitor, and machine
operators Peake and Campbell, but excluding office, clerical, and professional
employees, guards, and supervisors as defined in the Act.
257965-54-vol. 103--84
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Immediately thereafter the Respondents received a proposed agreement from
the Union, and between July 9, 1951, and January 24, 1952, the parties met 11
times' in connection with such agreement. The record indicates without dispute
that on certain items there was considerable give-and-take on both sides during
the negotiations ; in view of the findings made infra, it is unnecessary to detail
these matters. For the same reason, we need not weigh those issues with respect
to which the parties differ on what transpired.' But in several instances, the
Respondents acted in violation of accepted standards for good-faith bargaining;
and it is no condition to finding of unfair labor practices that the Respondents
run the gamut of all possible violations.
Among the instances noted by General Counsel as indicating bad faith, it
appears clearly that Union Representatives Kligman and Dean repeatedly re-
quested a list of employees with their job classifications, dates of hire, and rates
of pay; but Wood, the Respondents' representative, maintained that such a list
was "not pertinent." The list was necessary at least for consideration of any
seniority clause and its operations, and for sensible discussion of rates of pay.
In this connection, Wood disputed Dean's charge that employees with less seni-
ority were being favored over those with greater, but refused to submit a list
until "sufficient reason" was given for it. Finally, on October 11, Wood did
submit a list of employees as of October 4, but it contained no dates of hire
or rates of pay.'
Similarly in connection with rates of pay, Wood refused to state at one point
in the negotiations whether piece rates were in effect. Later he declared that
the Respondents were paying some piece rates ° but he could not then supply them
nor did he know when he could. He repeatedly stated that all employees were on
a 75-cent base rate, but would not say that all were in fact paid 75 cents per
hour. Nor would he explain how the base rate was applied or what other rates
or computations were superimposed on it. This is not bargaining in good faith,
and I so find.
There was a show of agreement when Wood agreed to recall laid-off employees
according to seniority. But here again, while he promised to post a seniority list
in the plant, he refused to give a copy to the Union. Another instance of refusal
to submit information necessary to mutual consideration of problems and good-
faith bargaining concerning them is seen in the refusal to agree to submit to the
Union the Respondents' studies in connection with workload grievances.
At the conclusion of the last meeting between the parties, Dean asked that they
"sign a contract based on the items that had been agreed to," but Wood refused.
1 The Respondents ' failure to appear on November 20 appeals to have resulted from a
misunderstanding . Nor does it appear that Wood, the Respondents ' manager, was unrea-
sonable in insisting that the meetings recess at approximately 4 p. in. There is no evi-
dence that , with knowledge of his reasons for wanting to leave at that hour , any attempt
was made or suggestion offered to convene at an earlier time.
2 The most important of these because most general is the question whether on July 11
the Respondents' attorney agreed to certain matters or only agreed to recommend them to
Wood. On the one hand , it appears that the former did in fact agree to bulletin board
and safety and health provisions , although he explained that these were routine or required
by State law . On the other , some inference might be drawn from the fact that after such
putative agreement the union representative nevertheless obtained agreement from Wood ;
here again is a contrary element : the later agreement may have been sought only as part
of the method of overall review which was followed.
s It was stipulated that on June 12, 1951, there had been approximately 162 employees ;
that the plant was closed at the end of July or the beginning of August ; and that by
October 4 production bad been resumed to the extent that 52 were employed.
* Later still he refused to say whether piece rates were paid.
STEIN-WAY CLOTHING COMPANY 1319
It is not clear whether Dean intended this to be the agreement between them or a
point of reference from which further agreement could be effected. I make no
finding in this connection.
Consideration of further evidence of failure to bargain in good faith is un-
necessary since the conclusion is already clearly warranted.' Wood's allotropic
approach toward the negotiation process suggests that he misunderstood what
the law requires under the circumstances ; but, whatever the reason, his failure
to bargain in good faith is no less such. While there were earlier disagreements
between the parties, the first instance of bad faith arose on September 27, when
Wood refused to submit the list of employees and rates of pay.
The Respondents offered evidence to the effect that before the election in June
the Union's representatives told employees that if they did not sign union cards
the Respondents would get no more Government contracts. If this was offered on
the issue of the Union's good faith during the bargaining negotiations, it will
suffice to note that such remarks were remote from the negotiations in point of
time and that the circumstances were quite different; the Union's good faith has
not otherwise been questioned. Nor has any claim been made that the Union's
majority was improperly obtained e
B. The alleged independent violation of Section 8 (a) (1)
The complaint alleges unlawful interrogation by Irving Scharfstein, formerly
a partner, and threats by Moe Scharfstein to discharge employees if they en-
gaged in union activities. Johnson and Crain,' and other employees, testified con-
cerning remarks by Irving about April or May 1951. Whether such remarks,
concerning attendance at a union meeting and signing of cards, and which John-
son regarded as a "bawling out," are intimidatory and tend to interfere with
employees' union activities, they do not constitute interrogation.
On June 12, the morning of the election, Moe, who appears to be the active head
of the partnership, told the assembled employees that he could not then give
them an increase but that he would when he felt that he could. He also called
on anyone who had anything to say to express her opinion. Whatever else they
may have been, those remarks were no threat. Johnson, accepting Moe's invita-
tion, called on the employees to vote for the Union. Although Phil Scharfstein
and Wood then took her by the arm and led her away, calling her a troublemaker
and urging the employees to pay no attention to her, there was here no threat
of discharge. The atmosphere was variously characterized as one of commotion
and of racket, and Wood testified that some of the girls headed for Johnson and
his concern was that no one bothered her.
I do, however, find interference in the uncontradicted testimony of employee
Bennett that shortly before the election and while she was working at her
machine, Moe said that he would throw her out if he heard her talking any more
about the Union while she was on the job. This threat was limited to talk about
the Union; nor does there appear to have been any rule against talking generally.
C. The alleged violation of Section 8 (a) (3)
There can be no question of the Respondents' knowledge of Johnson's union
activities. She distributed authorization cards, was elected president about a
week after the June election, and was present on behalf of the Union during the
bargaining negotiations.
' Cf. The Sttilley Plywood Company, 94 NLRB 932.
Cf. Apex Toledo Corporation, 101 NLRB 807.
7 Spelled "Crane" In the transcript, which is hereby corrected.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With other employees, Johnson was laid off when the plant was closed about
July 1951. Upon receipt of a card from the Respondents to report to the plant,
she appeared on the Wednesday after Labor Day, only to be told after she left
her address and telephone number that she would be called when needed. She
testified that some employees were not recalled to work ; she did not know
whether others who had received cards were not recalled. There is no evidence
of discrimination in the failure to reinstate her at that time or thereafter, either
by reference to employment of others who had been laid off and their relative
status or by showing of discriminatory hiring of new employees. Union activi-
ties and failure to employ have both been shown ; but no causal connection be-
tween them.
One day in October, as Johnson and Crain were on their way to the plant,
they met George Scharfstein' in the street and asked him when they could come
back to work. He replied that they apparently didn't want to work since they
were messed up with the Union ; and when they suggested disinterest in the
Union, he promised to "think about it" if they continued to talk about leaving the
Union. On her own behalf, Crain remarked that while Johnson was president
of the Union, she herself had not held any office. Crain was subsequently re-
called ; just when does not appear, although Johnson testified that it was not
before April 1952.
The evidence does not show that George is a supervisor in fact or that he is so
regarded in the plant or in the office, where he and two girls are employed. He
has been seriously ill for several years, his hours are short and irregular, and
his duties are limited. That he is on salary and not on an hourly rate, and does
not record his time, reflects his relationship with the owners of the business,
not a supervisory status. Miller, one of the girls in the office, while paid on an
hourly basis, has likewise suffered no pay deduction for time lost. (Her absences
are occasional.) That the latter prepares checks in payment of invoices in
George's absence but does not sign them whereas he does when he is available,
is evidence of a difference in degree of trust, not in authority.' Nor is George
"so closely identified with management that his conduct should be imputed to the
Respondent." "
To hold the Respondents liable for the impression entertained by 2 of some
150 or 200 employees, such impression indicated during the course of a chance
street meeting as is here described (no othor showing has been made), would
be to posit liability on the mere fact of relationship." This incident does not
support the allegation of unlawful discrimination.
Thereafter, Moe told Crain that he would take her back after the first of the
year and asked her to tell the other girls. Crain so informed Johnson, who
replied that they would be treated like dogs and that her husband said that she
could never work for the Respondents again. We have noted, supra, the absence
of proof of discrimination, by comparison with others, in any failure to recall
Johnson. Further in connection with the question of recall, it here appears that
the Respondents relied on application by the employees and notification among
themselves. I cannot find a promise or obligation to notify Johnson in one way
rather than another ; at any rate, she was called back. (Testifying again before
° Moe, Irving , Phil, and George are brothers.
e Parenthetically , it was Miller who took Johnson 's address and telephone number when
the latter applied for work in September and told her she would be called when needed,
as she did again in April 1952.
10 Trimfit of California, Inc., 101 NLRB 706. Cf. R. c6 J. Underwear Co, Inc., 101
NLRB 299.
ss I have not overlooked Crain's testimony that George told her, "Irving and I . . got
Moe to take you hack." Moe and Irving were the owners of the business at the time.
STEIN-WAY CLOTHING COMPANY 1321
the close of the hearing, Crain declared that Johnson told her that very after-
noon that she now recalled that her husband said she was not to work for the
Respondents.)`
Finally in this connection, Johnson testified that she reapplied for a job just
before she went to South Carolina in the spring of 1952, was told again that she
would be called if needed but was never called back. Even if this be accepted
as a bona fide application for work, there is no evidence of discrimination here.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section II, above, occurring in
connection with the operations described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
IV. THE REMEDY
Since it has been found that the Respondents have engaged in and are engag-
ing in certain unfair labor practices affecting commerce, I shall recommend that
they cease and desist therefrom and take certain affirmative action in order to
effectuate the policies of the Act.
It has been found that the Respondents refused to bargain collectively with
the Union thereby interfering with, restraining, and coercing their employees.
I shall therefore recommend that the Respondents cease and desist therefrom
and also, upon request, bargain collectively with the Union with respect to wages,
hours, and other terms and conditions of employment, and embody in a signed
agreement any understanding reached.
It has been further found that the Respondents, by threat, have interfered
with, restrained, and coerced their employees in violation of Section 8 (a) (1)
of the Act. I shall therefore recommend that the Respondents cease and desist
therefrom.
For the reasons stated in the subsection entitled "The alleged violation of Sec-
tion 8 (a) (3)," I shall recommend that the complaint be dismissed insofar as
it alleges the discriminatory failure and refusal to reinstate or reemploy Myrtle
Johnson.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Textile Workers of America, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the Johnson City, Tennessee,
plant, including the shipping clerk, janitor, and machine operators Peake and
Campbell, but excluding office, clerical, and professional employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section 9 (b) of the Act.
3. United Textile Workers of America, AFL, was, on June 12, 1951, and at
all times since has been the exclusive representative within the meaning of Sec-
tion 9 (a) of the Act, of all employees in the aforesaid unit for the purpose of
collective bargaining.
111 was not favorably impressed with Johnson's credibility. She gave apparently con-
tradictory testimony concerning the time when she left Johnson City, nor did she deny,
although available , Crain's testimony that she had falsely stated that she now lives alone
with her husband and son.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By refusing to bargain collectively with United Textile Workers of
America, AFL , as the exclusive bargaining representative of the employees in
the appropriate unit, the Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By such refusal to bargain and by threatening concerning union activities,
thereby interfering with , restraining , and coercing their employees in the exer-
cise of rights guaranteed in Section 7 of the Act, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and ( 7) of the Act.
7. The Respondents have not engaged in unfair labor practices within the
meaning of the Act by failing to reinstate or reemploy Myrtle Johnson.
[Recommendations omitted from publication in this volume.]
LUNDER SHOE CORPORATION D/B/A BRUCE SHOE COMPANY AND BRUCE
SHOE COMPANY , INC., and UNITED SHOE WORKERS OF AMERICA, CIO.
Case No. 1-CA-1162. March 31, 1953
Decision and Order
On December 22, 1952, Trial Examiner Stephen S. Bean 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 each Respondent cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the Respondents filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Styles, and
Peterson].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed.' The Board has considered the Intermediate
1 During cross-examination by Respondents , George Fecteau , territorial representative
of the Union , testified that there never had been a local of the Union in existence which
accepted as members , employees of Mitchell Shoe Company , Inc., or of the Respondents,
but that there had been a negotiating committee of employees of Mitchell Shoe Company,
Inc., for the purpose of negotiating a contract . Counsel for the General Counsel there-
after interposed an objection , which was sustained by the Trial Examiner , to the fol-
lowing question asked of the witness by the Respondents : "Were they [the negotiating
committee] elected by members of the United Shoe Workers who were employed at the
Mitchell Shoe Company ?" Respondents thereafter offered to prove that there was in fact
in existence , at the time of the filing of the petition leading to the certification of the
Union, a noncomplying local , or shop committee , acting as a labor organization for em-
ployees of the Mitchell Shoe Company , Inc. This offer was rejected by the Trial Examiner.
As the Trial Examiner pointed out , no offer of proof that members of the negotiating
103 NLRB No. 122.