S. Cohen & Sons

National Labor Relations Board - Board Decisions

Dec 29, 1937

4 N.L.R.B. 720 (N.L.R.B. 1937)

In the Matter of JACOB COHEN , LEE M. COHEN , LAWRENCE L. COHEN.
MILTON COHEN , MORTON COHEN and HYMAN COHEN , trading as
S. COHEN & SONS and LOCAL No. 227, INTERNATIONAL LADIES'
GARMENT WORKERS' UNION
Case No. C-98-Decided December 29, 1937
Ladies' Garment Industry Interference , Restraint or Coercion : anti-union
statements ; engendering fear of , loss of employment for union affiliation ; at-
tempts to persuade employees to resign from union ; effort to secure disclosure
of identity of union members ; questioning employees regarding union activities
and meetings-Collective Bargaining : refusal to negotiate with union as ex-
^clusive representative-Unit Appropriate for Collective Bargaining : production
eeniployees-Representatives : proof of choice : membership in union-Discrimina-
tion : discharge for union activity-Strike: provoked by employer 's unfair labor
practices-Employee Status : employees discharged ; strikers-Reinstatement
Ordered: employees discharged ; strikers , upon application ; preference list
ordered-Discharge Ordered: employees hired after'strike, if necessary to make
room for employees reinstated-Back Pay: awarded ; employees discharged;
strikers , from date of denial of application for reinstatement.
Mr. Jacob Blum, for the Board.
Weinberg ct Sweeten, by Mr. Harry J. Green and Mr. Zanvyl
Kreiger, of Baltimore, Md., for the respondent.
Mr. Warren L. Sharfman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On March 12 and 16, 1936, respectively, Angela Bambace, repre-
senting Local No. 227, International Ladies' Garment Workers' Union,
herein called Local No. 227, filed a charge and an amended charge
with the Regional Director for the Fifth Region (Baltimore, Mary-
land) alleging that Jacob Cohen, Lee M. Cohen, Lawrence L. Cohen,
Milton Cohen, Morton Cohen, and Hyman Cohen, a co-partnership,
trading as S. Cohen & Sons, Baltimore , Maryland, herein called the
respondent, had engaged in and was engaging in unfair labor prac-
tices 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 March 17, 1936, the Re-
gional Director duly issued and served upon the parties a complaint
and notice of hearing. The complaint alleged in substance that
720
DECISIONS AND ORDERS 721
since March 10, 1936, the International Ladies' Garment Workers'
Union, herein called the Union, represented, for the purposes of
'collective bargaining, a majority of the employees in the appropriate
unit of respondent's plant, and that on March 11, 1936, the respond-
ent refused to bargain collectively with the representatives of the
Union, and has since refused to do so. It further alleged that, on
March 12, 1936, respondent discharged, and has since refused to
reemploy, Lorraine Mack and Catharine Unger, for the reason that
they joined and assisted the Union and engaged in concerted activ-
ities with other employees in the plant for the purpose of collective
bargaining and other mutual aid and protection. Finally, it alleged
that these actions of the respondent constituted unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1), (3),
and (5) and Section 2 (6) and (7) of the Act.
On March 21, 1937, the respondent filed a special appearance for
the purpose of objecting to the jurisdiction of the National Labor
Relations Board, herein called the Board, the Regional Director for
the Fifth Region, and the Trial Examiner. At the same time the
respondent filed an answer, denying all of the allegations of the
complaint save that respondent was a co-partnership engaged in the
manufacture of ladies' cloaks and suits in Baltimore, Maryland,
which was to be considered in the event that an unfavorable ruling
was made on the special appearance.
Pursuant to the notice, a hearing was held at Baltimore, Maryland,
on March 30, 1936, before Robert M. Gates, the Trial Examiner duly
designated by the Board. All of the objections contained in the
special appearance were overruled and denied in an order filed by
the Trial Examiner at the commencement of the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues, was afforded all
parties. The respondent, appearing by counsel, objected to the intro-
duction of any testimony or evidence, but did not cross-examine the
Board's witnesses nor introduce any evidence upon its own behalf.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On May 12, 1936, the Trial Examiner filed an Intermediate Report
on the complaint, finding 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 Act, and recom-
mending that the respondent cease and desist from these violations,
that Catharine Unger and Lorraine Mack be reinstated and given
back pay, that all striking employees be reinstated, and that the re-
spondent proceed to bargain collectively with the Union. The re-
spondent excepted to the Trial Examiner 's Intermediate Report, and
722 NATIONAL LABOR RELATIONS BOARD
to each part of it. We have fully considered -the exceptions to the
Intermediate Report and find no merit in them.
As set forth below, we find that the evidence supports the findings
and conclusions made by the Trial Examiner in his Intermediate
Report that the respondent had engaged in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (3), and
(5) and Section 2 (6) and (7) of the Act.
Upon the entire record in the case, the Board makes the ,follow-,
ing :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, S. Cohen & Sons, is a co-partnership engaged
in the manufacture of ladies' cloaks and suits in Baltimore, Maryland.
The respondent stated that, on the average, it employs about 100
persons. Testimony at the hearing indicated that at the time of the
actions complained of, the respondent employed between 75 and 80
production workers, most of whom were women.
The principal materials used by the respondent are wool, cotton,
and silk textile fabrics; fur; thread; buttons; tape; and canvas.
Ninety-eight per cent of the materials purchased are shipped to it
from points outside Maryland by rail, truck, or boat. The manufac-
tured garments are sold to retail stores in seven states and the
District of Columbia by eight salesmen, five of whom are located in
Maryland, two in Illinois, and one in Alabama. Seventy per cent
of all sales are made outside of Maryland, principally in the South.
H. THE ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, affiliated with the
Committee for Industrial Organization, is a labor organization com-
posed of workers in the ladies' garment industry. On March 10, 1936,
it chartered Local No. 227, which admits to membership women em-
ployed as operators or finishers in Baltimore. Local No. 227, together
with Local No. 4 of the Union, which admits to membership men em-
ployed as operators, finishers, and pressers in Baltimore, and Local
No. 110 of the Union, which admits to membership cutters employed
in Baltimore, constitute the Joint Board of Baltimore.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
The complaint alleges that the respondent failed and refused on or
about March 11, 1936, and thereafter, to bargain collectively with the
Union, although prior to March 11 and at all times thereafter, the
Union had been designated by a majority of the employees in the
appropriate unit to represent them in collective bargaining.
DECISIONS AND ORDERS 723
Late in January 1936, Catharine Unger, an operator in respondent's
factory, became' dissatisfied with her wages and working conditions,
and appealed to Angela Bambace, an organizer for the Union, for
aid in bettering these conditions. A short time later Lorraine Mack,
also an operator in respondent's factory, made a similar request of
Miss Bambace on behalf of a group of the girls at the factory. Angela
Bambace promised that if the two women could get a group interested
she would organize them into a local to bargain with the respondent.
On February 25, 1936, through the efforts of Catharine Unger and
Lorraine Mack, their group had its first meeting, at which 18 women,
'employees of the' respondent, were present. A second meeting on
March 3, 1936, was attended by 42 employees, all of whom signed ap-
plication blanks and pledged themselves to join the Union. On
March 10, 1936, a third meeting was held with approximately 50 em-
ployees of the respondent present as members. At this meeting Local
No. 227 was formed, a charter prepared, and officers elected. Lorraine
Mack was elected chairlady of the S. Cohen & Sons shop.
The following day, March 11, 1936, Charles Kreindler, a vice-
president of the International Ladies' Garment Workers' Union,
phoned Lee Cohen, in the presence of Miss Bambace, and told him
the Union represented a majority of the employees in the re-
spondent's factory, and that he, Angela Bambace, and Samuel Cap-
lan, representatives of the Union, would like to discuss wages and
hours with him. Lee Cohen's reply was, "Send me a letter". The
same day a letter from Kreindler, stating that he and his associates
had been selected 'as representatives for collective bargaining by the
majority of the respondent's employees and requesting a conference,
was sent by-a Postal Telegraph messenger to Lee Cohen. The letter,
which had been opened, was returned by the messenger. Kreindler
sent the letter back with the messenger and told him to leave it with
Lee Cohen. The messenger reported to Kreindler that he had de-
livered the letter on the first occasion and that the respondent had
given it back 'to him and said "No reply", and that he had later left
the letter ` with' the respondent. The next day, March 12, 1936, Lee
Cohen discharged' Catharine Unger and Lorraine Mack. On the
evening of the same day, a few hours after the discharges, the Union
met and voted to go on strike because`'of the discharges and the
respondent's refusal to recognize the Union as the exclusive bargain-
ing agent for its employees. The next morning 68 members of the
Union went out on strike, of whom 11returned to work on March 17,
1936.. The remainder were on strike at the time of the hearing. The
representatives of the Union made no further requests of Lee Cohen,
and have `pev'er' received a reply to their letter of March 11, 1936.
We conclude that the actions of the respondent constituted a refusal
on its part to bargain with the Union representatives, provided that
724 NATIONAL LABOR RELATIONS BOARD
the Union, at the time the respondent did these acts, represented a
majority of the employees in an appropriate bargaining unit.
Union membership in the respondent's shop is limited to the pro-
duction employees, consisting of operators, finishers, pressers, and
cutters, exclusive of handymen, office and supervisory employees.
Local No. 227 of the Union admits to membership women employed
as operators or finishers in Baltimore. Local No. 4 of the Union
admits to membership men employed as operators, finishers, or-
pressers in Baltimore. Local No. 110 of the Union admits to mem-
bership persons employed as cutters in Baltimore. The three locals
function as a unit through the Joint Board of Baltimore. Charles:
Kreindler, Samuel Caplan, and Angela Bambace represented all
three locals for the purposes of collective bargaining when Kreindler
telephoned and wrote to Lee Cohen on March 11, 1936. It is apparent
that the production employees, in addition to being a unified group
functionally, are also unified for the purposes of collective bargain-
ing even though they belong to different locals of the Union.
The production employees, consisting of operators, finishers, press-
ers, and cutters, exclusive of handymen, office and supervisory em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment,
and other conditions of employment, and such a unit insures to the
respondent's employees the full benefit of their right to self-organ-
ization and collective bargaining, and otherwise effectuates the poli-
cies of the Act.
The complaint alleged that at the time of the respondent's re-
fusal to bargain collectively, the Union represented a majority of
the respondent's employees in the appropriate unit. The testimony
of the Board's witnesses indicated that on March 11 respondent em-
ployed between 75 and 80 production workers. The respondent's
figure of 100 employees is an average figure, rather than a specific
figure as to the number employed on March 11, and it includes all
employees rather than just those engaged in production. The Board
introduced into evidence 68 applications for membership in the
Union signed by employees of the respondent prior to March 11,
1936. Each of the three locals affiliated with the Joint Board of
Baltimore received some members from this group of applicants, but
as each local had the same representatives for the purposes of collec-
tive bargaining, the applicants were represented as a unit.
We therefore find that on March 11, 1936, and at all times there-
after, International Ladies' Garment Workers' Union, Joint Board
of Baltimore, was the duly designated representative of the majority
of the employees in the appropriate unit, and, pursuant to Section
9 (a) of the Act, was the exclusive representative of all the em-
ployees in such unit for purposes of collective bargaining in respect
DECISIONS AND ORDERS 726
to rates of pay, wages, hours of employment, and other conditions.
of employment.
We find that on March 11, 1936, and thereafter, the respondent
refused to bargain collectively with the duly designated repre-
sentatives of a majority of its employees in the unit appropriate,
for the purposes of collective bargaining in respect to rates' of pay,.
wages, hours of employment and other conditions of employment..
B. The discharges
Catharine Unger, an operator, was employed by respondent early
in January 1936. She had worked for respondent during the 1932'
season, and elsewhere during the succeeding seasons. Shortly be-
fore her reemployment she received several post cards from the-
respondent asking her to come back, but she did not return until
Samuel Cohen, the father of the members of the respondent co-part-
nership, came to her home, promised her better conditions, and asked
her to return.
Although Catharine Unger had been promised better conditions,,
she found them less bearable as her employment continued. As a;
result she went to the Union for aid, and Local No. 227 was organ-
ized in the manner described in Section III A, above.
On March 3, 1936, Catharine Unger signed an application for-
membership in the Union. On March 12, the day after the Union
attempted to negotiate with the respondent, Lee Cohen came to her
and told her to get her hat and coat and come to the office. When
she went to the office he handed her her pay envelope. The only
reply he gave to her question as to why she was discharged was,
"We can't use you any more." He insisted upon her leaving imme-
diately, following her into a public dressing room, and threatened
to call the police if she did not go. He refused to let her use the.
elevator in descending from the eighth floor, and before she left
attempted to take her personal work book from her. Mrs. Unger
obtained no work from the date of her discharge to the date of the
hearing. Her average earnings up to the time of her discharge-
were $13.00 per week.
Lorraine Mack, an operator, was employed by the respondent for
a period of four or five years prior to the present difficulty. Al-
though she earned around $45.00 a week while N. R. A. was in force,
she was only receiving $21.00 or $22.00 a week *during the first two
months of 1936. During slack seasons she was usually the last
worker to be laid off. Early in 1936, when wages were reduced and
hours lengthened, a number of the employees became restless, and
Lorraine Mack went to the Union to seek aid in the improvement
of their conditions. Thereafter, Local No. 227 was organized in the,
726 NATIONAL LABOR RELATIONS BOARD
manner set forth in Section III A, above. Lorraine Mack applied
for membership in the Union on March 3, and received her card a
few days later. On March 10, she was elected chairlady of the
respondent's shop. On March 12, a few hours after Catharine Unger
had been discharged, Lorraine Mack was called into Lee Cohen's
office and discharged. No reason was given for the discharge, Lee
Cohen merely 'said, "I am awfully sorry but I can't use you any
more, Mrs. Mack." Mrs. Mack told him he was wrong in thinking
he could break up the Union by discharging her. Cohen replied,
-"All right, see how many of the girls stick with you." Mrs. Mack
obtained no work from the date of her discharge to the date of the
-hearing. During the two weeks prior to her discharge she earned
$27.00 a week.
It was testified at the hearing, and not contradicted by the respond-
.ent, that the respondent had discharged employees in the past for
union, activity, and had taken them back only after intervention by
government authorities. The respondent on various occasions prior to
these discharges attempted to find who, among its employees, were
sympathetic with the Union, and attempted to thwart the employees'
efforts to organize. The respondent paid "Willie," one of its employ-
ees, to attend the first meeting of Local No. 227 and find out who,
among the employees, attended. Mrs. Unger was questioned by Acker-
man, the foreman, and Sarubin, the head cutter, as to the nature of,
the Union meetings. Lee Cohen called Mrs. Mack to his office on
February 27, two days after the first Union meeting, and after failing
to get any information as to what happened at the meeting, and after
stating that he had previously discharged some employees for join-
ing the Union, offered to pay her $25.00 'a week, regardless of her pro-
duction, but insisted that she stop thinking about "this other matter".
In considering the respondent's motive for the discharges, it should
be remembered that the respondent was anxious to obtain and retain
the services of Catharine Unger and Lorraine Mack until their in-
terest in the formation of the Union was manifested, and even then
the respondent"made no complaint as to their work, 'and offered no
reason for their discharge. - ' '
We find that the respondent discharged Catharine Unger and Lor-
raine Mack because of their union activity and thus discriminated
against them 'in regard to the tenure 'of their employment,, thereby "
discouraging membership in the Union.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, oc-
curring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation to
DECISIONS AND ORDERS 727
trade, traffic, and commerce among the several states, and have led
and tend to lead to labor disputes burdening and obstructing coin-
merce and the free flow of commerce.
THE REMEDY
We will order that Catharine Unger and Lorraine Mack be offered
reinstatement to their former positions. They are entitled to back
pay from the date of their discharge until the respondent offers to
reinstate them, less any amounts earned by them in the meantime.
We have found that the respondent's production workers struck
on March 13, 1936, owing to the respondent's refusal to bargain col-
lectively with the representatives of its employees and its discharge
of Catharine Unger and Lorraine Mack for union activity. Since
the strikers ceased work as a consequence of, and in connection with
a current labor dispute, and because of the respondent's unfair labor
practices, those strikers who have not obtained any other regular and
substantially equivalent employment have been since March 13, 1936,
"employees" of the respondent within the meaning of Section 2 (3)
of the Act. The respondent is under a duty to reinstate the strikers,
upon application, to their former positions and to restore the status
quo which existed prior to its commission of the unlawful acts.
Therefore, we shall order the respondent to offer to those employees
who were on strike as of March 13, 1936, and who have not obtained
regular and substantially equivalent employment elsewhere, upon ap-
plication, immediate and full reinstatement to their former positions,
without prejudice to their seniority and other rights or privileges;
to dismiss, if necessary, such employees as it has hired since the
strike ; and place those for whom work is not available on a pre-
ferred list to be offered employment as it arises on the basis of
seniority by classifications before any other persons are hired. Our
order will also provide that employees whose applications for rein-
statement are'refused by the respondent in violation of this order
shall be entitled to back pay accruing from the date of the refusal
of the application to the date of reinstatement, less any amount
earned during that period.'
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union is a labor
Organization, within the meaning of Section 2 (5) of the Act.
1 Hatter of Tito Boss Manufacturing Company and International Glove Workers'
Union o f America, Local No. 85, 3 N L. R . B. 400.
67573-38-vol. iv-47
728 NATIONAL LABOR RELATIONS BOARD
2. Catharine Unger and Lorraine Mack were at the time of their
discharges, and at all times thereafter, employees of the respondent,
within the meaning of Section 2 (3) of the Act.
3. The respondent, by discriminating against Catharine Unger
and Lorraine Mack in regard to hire and tenure of employment and
conditions of employment, thereby discouraging membership in the
Union, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
4. The respondent, by interfering with, restraining, and coercing
As 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.
5. The strike of the employees was a labor dispute, within the
meaning of Section 2 (9) of the Act.
6. Those strikers who have not obtained any other regular and
substantially equivalent employment are employees of the respondent,
within the meaning of Section 2 (3) of the Act.
7. All the production employees, consisting of operators, finishers,
pressers, and cutters, exclusive of handymen, office and supervisory
employees, constitute a unit appropriate for the purposes of collec-
tive bargaining, within the meaning of Section 9 (b) of the Act.
8. By virtue of Section 9 (a) of the Act, international Ladies'
Garment Workers' Union, Joint Board of Baltimore, having been
selected as their representative by the majority of employees in the
appropriate unit, was on March 11, 1936, and at all times thereafter
has been, the exclusive representative of all the employees in such
unit for the purposes of collective bargaining.
9. The respondent, by refusing to bargain collectively with the
representatives of its employees on March 11, 1936f and thereafter,
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (5) of the Act.
10. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the respondent, Jacob Cohen,
Lee M. Cohen, Lawrence L. Cohen, Milton Cohen, Morton Cohen
and Hyman Cohen, trading as S. Cohen & Sons, Baltimore, Mary-
land, 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
DECISIONS AND ORDERS 729
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted 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 causing any employee, or other person,
to spy upon or investigate the activities of its employees in the
course of their efforts to exercise the rights guaranteed in Section 7
of the Act.
3. Cease and desist from refusing to bargain collectively with
International Ladies' Garment Workers' Union, Joint Board of Balti-
more, as the exclusive representative of all its production employees,
consisting of operators, finishers, pressers, and cutters, exclusive of
handymen, office and supervisory employees.
4. Cease and desist from discouraging membership in International
Ladies' Garment Workers' Union, Local No. 227, or any other labor
organization of its employees, by discharging and refusing to rein-
state employees, or otherwise discriminating in regard to hire and
tenure of employment or any term or condition of employment, or
by threats of such discrimination.
5. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
a. Offer to Catharine Unger and Lorraine Mack immediate and
full reinstatement, respectively, to their former positions , without
prejudice to their seniority, or other rights or privileges;
b. Upon application, offer to those employees who were on strike
as of March 13, 1936, and who have not obtained regular and sub-
stantially equivalent employment elsewhere, immediate and full rein-
statement to their former positions, without prejudice to their senior-
ity or other rights or privileges; dismiss, if necessary, such employees
as it has hired since the strike; and place those for whom employ-
ment is not available on a preferred list to be offered employment
as it arises on the basis of seniority by classifications before any
other persons are hired;
c. Make whole Catharine Unger and Lorraine Mack for any loss
of pay they have suffered by reason of their discharge by payment
to each of them, respectively, of a sum of money equal to that which
each of them, respectively, would normally have earned as wages
from the date of her discharge to the date of the offer of reinstate-
ment pursuant to this order, less any amount earned by each of them,
respectively, during such period ;
d. Make whole all employees who were on strike on March 13,
1936, for any losses they may suffer by reason of any refusal of their
application for reinstatement in accordance with paragraph 5 b
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
730 NATIONAL LABOR RELATIONS BOARD
the period from the date of any such refusal of their application'to
the date of offer of reinstatement, less any amount earned by each
of them, respectively, during such period;
e. Upon request, bargain collectively with International Ladies'
Garment Workers' Union, Joint Board of Baltimore, as the exclusive
representative of all its production employees, consisting of oper-
ators, finishers, pressers, and cutters, exclusive of handymen, office
and supervisory employees, for the purposes of collective bargain-
ing in respect to rates of pay, wages, hours of employment, and other
conditions of employment;
f. Post notices in conspicuous places where they will be observed
by the' respondent's employees stating: (1) that the respondent will
cease and desist in the manner aforesaid; and (2) that said notices
will remain posted for a period of thirty (30) consecutive days from
the date of posting;
g. Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.