Tabin-Picker & Co.

National Labor Relations Board - Board Decisions

Jun 29, 1943

50 N.L.R.B. 928 (N.L.R.B. 1943)

In the Matter of TABIN-PICKER & Co. and. INTERNATIONAL LADIES' GAR-
MENT WORKERS' 1 UNION AMERICAN FEDERATION OF LABOR )
Case No. C-2537.-Decided June 29, 1943
DECISION
AND
ORDER'
On February 15, 1943, the. Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
affecting commerce, and recommending that it cease and desist there-
from and take certain affirmative action, Its set forth in the copy of the
Intermediate Report annexed hereto. Thereafter the respondent and
the Union filed exceptions to the Intermediate Report and other parts
of the record, and ,supporting briefs. The Board has considered the
rulings made by the Trial Examiner at and subsequent to the hearing,
and a further ruling made by the Chief Trial Examiner denying the
respondent's motion to reopen the hearing, and finds that no prej-
udicial error was committed. The rulings are hereby affirmed.
Pursuant to notice to all parties, a hearing for the purpose of oral
argument was held before the Board in Washington, D. C., on May 18,
1943. The respondent appeared and participated in the hearing.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts' the
findings, conclusions, and recommendations made by the Trial Ex-
aminer, with the following exceptions and additions :
1. The Trial Examiner found that the respondent violated the Act
by dominating and interfering with the formation of the T. P. E.
'While'we agree that the respondent engaged in such conduct, we find
that it did not constitute an unfair labor practice because it occurred
before the effective date of the Act.
' 2. The Trial Examiner found that the respondent violated the Act
by discriminatorily discharging Embroidery Department Foreman
Otto Buenzli and nine of the employees under his supervision. We
agree with this finding, - except with respect to Foreman Buenzli.
In the summer of 1941 the embroidery department, in operation under
1 So entitled in the amended charge and complaint . The correct name is Inteenational
Ladies' Garment Workers' Union.
50 N. L. R. B., No. 133.
928
TABIN-PICKER & CO. 929 '
the supervision of Foreman Buenzli since 1938, employed three men
and nine girls in addition to Buenzli . In August 1941 Buenzli,,in
violation of. the respondent's instructions that its supervisors should'
not interfere with the union activity of its rank and file employees,
encouraged the employees under his supervision to join the Union
during working hours at the, plant. They all began wearing union
buttons at work on Friday, September 5. Albert Tabin, the respond-
ent's president, admitted at the hearing that he visited the department.
on that day, observed the union buttons, and was "surprised" to see
Buenzli also wearing one. On the next workday, Monday, September
8, Buenzli , without obtaining permission from any of his superiors,
left the department in mid-morning with the intention of spending
the rest of the day at his home. , The summer rush, which had lasted,'
for the months of July and•August and had required Buenzli's attend
ance for irregular , extra periods in order to supervise both of the two
shifts then in operation, had given way to a slack "in-between" season
before the early fall rush commenced. Tabin visited the department
on three separate occasions later that day, each time observing
Buenzli's absence and being told by the employees that he was not
expected back. Tabin, according to his own testimony, thereupon
decided to "let the people out," not only Buenzli, but also Buenzli's
son Charles, Irving Lipschultz, and all the girls who were not needed
to assist in completing tl!e unfinished work. Accordingly, When
Buenzli returned to the plant near. the close of work on that day,
Tabin called him into the office, criticized him for having been absent -
without permission and for having signed up his department in the
Union, and thereupon discharged him and his son Charles.2 Before
the commencement of work on the next day, September 9, .Tabin
assembled the girls and told them that it was impossible to continue
the department and that they would be laid off ; a he then told Lip-
'schultz that the latter was discharged. Five of the girls (Summaria,
Mullard, DiDominico, Tvrdy, and Jensen) were dismissed at the close
of work oh that day, and two more (Johnson and Ciafaglia) on
September 12, the end of the workweek. One man (Blum) and two
girls (Simoulis and Niemczewski) were not laid off, but continued
in the respondent's employ.
'Charles Buenzli was not directly discharged by Tabin . According to Tabin, he had
previously decided to discharge Charles, and accordingly had Charles ' pay check made out
before he discharged Otto Buenzli . When he discharged Otto, the latter threatened to
take Charles with him Tabin replied that it would "suit him fine," and then gave Otto
Charles ' check as well as Otto ' s own check. The respondent contends in its brief before
the Board that it "probably would have" dischaiged Charles but did not 'do so, because,
his father anticipated such action and "took him out of , the plant" upon his own discharge.
Under the circumstances , we reject this contention and find that Charles Buenzli ' s separa-
tion constituted a discharge '
-i According to the credible testimony of a witness called by the respondent , Poldi Tvrdiy,
who was employed in the embroidery department both at the time of the lay-off and the
hearing, Tabin told the girls that he ` would not need their help any mdse. because ' the
department did not pap . Tabin in substance corroborated Tvrdy.
930 DF'CISIONS OF NATIONAL .-LABOR RELATION'S BOARD
Upon the entire record, we "are convinced that the respondent dis-
charged Foreman Buenzli for, having absented himself from work
-Without permission and for having violated the instructions to super-
visors not to interfere with the union activity of the rank and file
employees. Nor are we convinced, from the record, that such instruc-
tions were discriminatorily enforced. Accordingly, we find, contrary
to the -Trial Examiner, that the respondent's conduct in discharging
Buenzli did not violate the Act. ,
We are equally convinced that the respondent discharged the re-
maining embroidery department employees to discourage membership
in the Union. The respondent in effect concedes that they were dis-
charged, but contends in its brief before the Board that they were,
"fooling and laughing" when Tabin visited the department on Sep-
tember 8, and were discharged for that reason. While it is true, as
the Trial Examiner found, that the employees "were talking and
laughing" and that "a number of the employees in the department
were not working" on the occasion of Tabin's visits, this was a slaek
"in-between" season which did not require the same degree of con-
centrated attention as did, the preceding rush season. Moreover,
according to Tvrdy,'a substantially disinterested witness called by the
respondent, Tabin did not advise the employees, when discharging
them, that their discharge was due to any alleged misconduct on their
part, but attributed his actionl to the fact that the department did
not pay. Under all the circumstances, and particularly in view of
the fact that on the preceding workday Tabin-for the first time saw
all the employees in the. department wearing union buttons, we, like
the Trial Examiner', find that the employees in the embroidery depart-
ment were discharged, not because of any alleged misconduct on their
part, but because of their union membership and activity.
3. The Trial Examiner found that the respondent discharged
Rountry because of his union activity.' We do not agree with this
finding. Early in October 1942 Michaud, Rountry's foreman, and
Superintendent King had both reprimanded Rountry for distributing
-literature in the plant, and, exacted a promise from him that he
would not do so again even on his own time. In, the interest of
keeping the plant clean 'and orderly it is not unreasonable for an
employer to prohibit the distribution of literature on plant premises
at all times. Thus, the warning given to -Rountry early in October,
absent a showing of discrimination, was not violative of the Act:
Nevertheless,%n October 27 Rountry proceeded to distribute handbills
in the plant, announcing an open union meeting. The record shows,
,,and the Trial Examiner found, that Rountry was discharged for this
reason. Since the restriction on the distribution of literature was
not discriminatorily enforced;' we find, contrary to the Trial
Examiner, that the discharge was, not discriminatory.
I TABI'N-PICKER & CO. 931
4. Since Charles Buenzli joined the armed forces of the United
States after his discharge by the respondent, we shall order the re-
spondent, upon application,by Buenzli within forty • (40) days after
his discharge from the armed forces, to offer him reinstatement to
his former or a substantially equivalent position for which he is quali
fled, without prejudice to his seniority or other rights and privi-
leges. We shall further order the respondent to make Charles Buenzli
whole for any loss of earnings he may have suffered by reason of
the respondent's discrimination against him, by payment to him of
a sum of money equal to the amount he would normally have earned
as wages during the periods (1) between the date of the respondent's
unlawful discrimination against him and the date of his induction
into the armed forces, and (2) between the date five (5) days' after
his timely application for reinstatement and the date of the offer of
reinstatement, less his net, earnings during these periods. We find
further that the respondent has an obligation to pay Charles Buenzli
immediately whatever amount is now- due him for the period, from
the date of its discrimination against him to the date of his induction
in the armed forces.4
ORDER
Upon the basis of the foregoing findings of fact and the entire
record in the case, and pursuant to Section 10 (c) of the National
Labor Relations Act, the National Labor Relations Board hereby
orders that the respondent, Tabin-Picker & Co., Chicago, Illinois,
and its officers, agents, successors, and' assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of the
T. P. E. Organization, and dominating or interfering with the forma-
tion or administration of any other labor organization of its em=
ployees, and from contributing financial or other support to the
T. P.' E. Organization or to any other labor organization of its
employees ; %
(b) Recognizing the T. P: E. Organization as the representative
of any of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment;
(c) Discouraging membership in International Ladies' Garment
Workers' Union or any other labor organization of its employees, by
discharging or 'in any other manner discriminating in regard to hire
or tenure. of employment or any term or condition of employment;
(d) In any other manner interferring .with, restraining, or coerc-
ing its-employees in the exercise of the right to self-organization, to
' See Matter of The American Laundry Machinery Company , 45 N L R B 355
I
932 D'EICr'SIONIS OF I ATIOATAL LABOR REI ATIONSI BOARD
form, join, or assist labor organizations,,- to bargain collectively
through representatives of their own choosing, and to engage in con-
certed 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) Withdraw all recognition from and completely disestablish
the T. P. E. Organization, as the representative of any of its em-
ployees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other. conditions of employment; _ -
(b) Offer to Irving Lipschultz, Jean B. Summaria, Helen Mul-
lard, Gilda De'Dominico, Ethel Johnson, Pearl G. Whelan, and Esther
Lindholm, immediate and full reinstatement to their' former or sub-
stantially equivalent positions for which they are qualified, without
prejudice to their seniority or other rights and privileges;
(c) Upon application-by Charles Buenzli within forty (40) days
after his discharge from the armed forces of the United States, offer
him, immediate and full reinstatement to his former or a substan-
tially equivalent position -for which he is qualified, without preju-
dice to his seniority or other rights and privileges; -
(d) Make whole Charles Buenzli for any loss of pay he may have
suffered by reason of the respondent's discrimination against him,
by payment to him of a sum of money equal to the amount which he
normally would have, earned as wages during the periods (1) be-
tween the date of the respondent's unlawful discrimination and the
date of his induction into the armed forces of the United States, and
(2) between the date five (5) days after his timely application for
reinstatement and the date of the offer of reinstatement, less his net
earnings during these periods; 5
(e) Make whole Irving Lipschultz, Jean B. Summaria, Helen Mul-
lard, Gilda DiDominico, Ethel Johnson, Pearl G. Whelan, and Esther
Lindholm,, for any loss of pay they may have suffered by reason of
the respondent's discrimination against them, by payment to each of
them of a sum of- money equal to the amount which each normally
would have earned as wages during the period from the date of his
or her discharge to the date of the respondent's offer of reinstatement
pursuant to this Order, less his or her net earnings during such
period ;
(f) Make,whole Poldi Tvrdy, Elizabeth Jensen, and' Laura Ciafag-
lia for any loss of pay they may have suffered by reason of the re-
spondent's discrimination against them, by payment to each of them
of a sum of money equal to the amount which each normally would
have earned as wages during the period from the date of, her dis-
5 See paragraph 4 of Decision, supra.
TABIN-PICKER & CO. 933
charge to October 15, 1941, less her net earnings during such period;
(g) Make whole Frank Rountry for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he
normally would have earned as wages during the period of his -lay-
off in March 1942, less his net earnings during such period;,
(11) Post immediately in conspicuous-places in and around its plant
in Chicago, Illinois, and maintain for a period of at least sixty (60)
consecutive 'days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b), (c),
and (d) hereof; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), (d), (e), (f), and
(g) hereof; and (3) that the respondent's employees are free to
become or remain members of International Ladies' Garment Work-
ers' Union, and that the respondent will not discriminate against any
employee because of membership or activity in said organization ;
(i) Notify the Regional Director for the Thirteenth 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 complaint, insofar as it alleges
that the respondent has engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act with respect to the discharge
of Otto Buenzli and Frank Rountry and the lay-offs" of Theresa
Neubauer, Eleanor Enda, Genevieve Pawloski, Florence Kalish, Gene
Milewski, Loretta Poteracki, and Virginia Milewski, be, and it here-
by is, dismissed,
MR. GERARD D. REILLY took no part in the consideration of the above'
Decision and Order.
INTERMEDIATE REPORT
Mr. David Karasick, for the Board.
Decker & Golden, by Mi. Herbert Decker, and Jacobson, Merrick, 'Nierman
& Silbert, by Mr. David' Silbert, of Chicago, Ill., for the respondent.
Mr. Edward W. Sowin, of Chicago, Ill., for the T. P. E. _
Mr. Harold W. Schwartz, of Chicago, Ill., for the Union.
STATEMENT OF THE CASE
Upon a third amended charge duly filed November 24, 1942, by International
Ladies' Garment Workers' Union, herein called the Union, the National Labor
Relations Board , herein called the Board , by the Regional Director for the
Thirteenth Region (Chicago, Illinois), issued its complaint dated, November 24,
1942, against Tabin-Picker & Co, herein called the respondent, alleging that
the respondent had engaged in 'and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (2) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
536105-44-vol. 50-60
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Act. Copies of the complaint and notice of hearing were duly served
upon the respondent , the Union and upon the T. P. E: Organization referred to
in the complaint.
With reference, to the unfair labor 'practices , the complaint alleged in sub-
stance that the respondent (1) on about March 30, 1934, initiated the' creation
of the T. P. E. Organization , herein called the T. P. E, and thereafter dominated
the organization and administration of the T. P. E. and contributed support
thereto; (2) discharged ten named employees in its embroidery department in
September 1941; Esther Lindholm on January 27, 1942, and Pearl Gittler Whelan
and Frank Rountry on October 27, '1942, because they joined or assisted the
Union , and has since refused to reinstate any of said employees ; ( 3) laid off
Ann Noble and Renatta Zarnow for 2 days in January 1942, Theresa Neubauer,'
Lucille Sisko , Ann Dobovitz, Mary Kantz and six other employees for one day
in February 1942 and Frank Rountry from March 17 to about March 31, 1942,
because they joined or assisted the Union; and (4 ) by the foregoing acts and
by disparaging the Union, by questioning, advising and warning its employees
concerning the Union and membership therein, by threatening to close its
plant if Union activity continued and in various other manners specified in the
complaint, the respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
Prior to the opening of the hearing, the respondent moved to dismiss the
complaint or to strike parts thereof. At the same time it moved for a Bill of
Particulars in the event the motion to dismiss was denied On December 5, 1942,
an order was signed by Josef -L. Hektoen, Trial Examiner, denying the motion
to dismiss the complaint or to strike certain portions thereof. The order.granted
the motion for a Bill of Particulars and instructed counsel for the Board to
furnish counsel for the respondent, not later than December 10 with the names
of the officers, agents and servants of the respondent alleged in the complaint
to have committed certain unfair labor practices. The Bill of Particulars was
duly served December 9. On December 11, the respondent filed its answer admit-
ting the allegations of the complaint as to the nature of its business but denying
that it had engaged in any unfair labor practices. As an affirmative defense the
respondent alleged that the Union was guilty of lathes in filing charges and the
Board in issuing the complaint. The answer further alleged that the respondent
had offered to consent to an election among its employees under the auspices
of the Board for the purpose of determining whether or not a majority of the
employees wished to be represented by the Union, but that the Union had refused
the, offers The answer further alleged that in violation of the national agree-
ment between the President of'the United States and representatives of Labor
that strikes would not occur during the War, the Union called a strike among
.the respondent's employees on December 2, 1942, which strike was still in,
progress and interfering with production; and that because the strike was in
violation of the agreement and unpatriotic, the Union was not entitled to any
protection under the Act.
Pursuant to'notices, a hearing was held beginning December 14, 1942, and
ending December 30, 1942, in Chicago, Illinois, before J. J. Fitzpatrick, the
undersigned Trial Examiner duly designated by the Chief Trial Examiner. At the
opening of the hearing the T. P. E's motion to intervene, previously filed, was
granted insofar as the complaint alleged that it was a company dominated union.
The respondent renewed its previous motion to dismiss the complaint or in the
alternative, to strike certain paragraphs thereof. The motion was denied.
Misspelled Whalen in the complaint
2 Named in the complaint as Theresa Hanko Neubauer.
i
TABIN-PICKER & co. - 935
Board's' counsel moved to strike those portions 'of the respondent's answer
alleging (a)' laches on the part of the Union and the Board;, (b) the offers to
hold an election to determine whether the Union represented a majority of the
respondent's employees; and (c) that the Union had called a strike in violation
of a national agreement. The motion was denied as to 'the allegation of laches
but granted as to the election and the strike. The Board, the respondent, the
T. P E and the Union were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine witnesses
and to introduce evidence bearing on the issues was offered all parties. At the
conclusion of the Board's main case Board's counsel moved to dismiss the allega-
tions in-the complaint as to the discriminatory lay-offs of Ann Noble, Renatta
Zarnow, Ann Dobovitz, Lucille Sisko and Mary Kantz,' and also to amend the
complaint to conform to the proof as to names, dates, and clerical errors. There
was no objection and both motions were granted. At the conclusion of the hearing
counsel for the Board, the respondent, and the intervenor presented oral argu-
ment on the record. The parties were also advised of their right to file briefs
with the undersigned after the close of the hearing. No briefs have been filed.
After the close of the hearing and on February 10, 1943, pursuant to a stipulation
entered into by all parties, the undersigned ordered certain corrections made in
the transcript of the record. After the close of the hearing the respondent filed
with the Board a motion to reopen the hearing to receive the testimony of certain
rebuttal witnesses, or in the' alternative, to accept in evidence the affidavits of
said witnesses attached to the motion. On February 3, 1943, the Chief Trial
Examiner denied the motion to reopen the hearing He ordered that the portion
of the motion in the alternative to receive the affidavits of the proposed witnesses
in evidence be referred to the undersigned for disposition. On February 3 the
undersigned issued an order to all the parties to show cause to him not'later than
February 10, 1943, why the alternative motion should not be granted and the affi-
davits be received in evidence. Copies of the order of the Chief Trial Examiner
as well as that of the undersigned were duly served on all the parties forthwith.
About February 5 the International Ladies' Garment Workers' Union filed objec-
tions to the opening of the hearing but raised no objection to the receipt by the
Board of the affidavits of the proposed witnesses except only on the grounds that
such evidence was immaterial and cumulative. No other appearance or objection
was made to the order to show cause by any of the,parties. Whereupon, on
February 11, 1943, the undersigned entered an order receiving in evidence the
affidavits attached to the motion.
Upon the entire,record in the case and from his observation of the witnesses,
the undersigned makes the-following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Tabin-Picker & Co. is a corporation organized under the laws of the State of,
Illinois with its office and plant in the city of Chicago. It is engaged in the manu-
facture, sale, and distribution of ladies' house dresses. During the year 1941
the respondent purchased materials in excess of $500,000, of which more than 75
percent came from points outside the State of Illinois. During the same period
its sales exceeded $1,000,000, of which in excess of 75 percent represented ship-
ments to points outside the State of Illinois.
a None of these individuals appeared at the hearing or testified.
936 DE'C2'SIONS OF NATIONAL LABOR RELATIONS' BOARD
IL THE ORGANIZATIONS INVOLVED
The International Ladies' Garment Workers' Union,, affiliated with the Amer-
ican Federation of Labor, is a labor organization admitting to membership
employees of the respondent.
The T P. E Organization is an unaffiliated labor organization which limits
Its membership to the employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Domination of T. P. E.; interference, reshaint and coercion
The respondent employs between 1100 and 1200 workers, mostly women, in about
20 departments. In many of them, notably the cutting department on the fourth
floor and the single needle department on the second and third floors, there are
a number of foremen and foreladies, each in charge of a certain group called a
section. ' A man supervisor is in charge of the entire cutting department and a
woman supervises the foreladies in the single needle department.
In the latter part of 1933 or early in 1934 the Union had distributed a few
circulars in front of, the respondent's plant but, so far as the record discloses,
no further effort was made, to organize the employees of the respondent at that
time. However, in March of 1934, eight or ten employees, including Elsie Schmidt,
met at the home of employee Emma Johnson to discuss-ways and means of
forming an organization in the plant with sick benefits and collective bargaining
features, similar to an organization then existing at the Western Electric Com-
pany. The. group arranged for a larger meeting to be held after working hours
on Saturday afternoon, March 31, in a branch plant of the respondent located
at 2701 Belmont Avenue.' The Saturday meeting was attended by about 40•
employees Adrian Tabin, vice president and general manager in charge of pro-
duction, appeared at the meeting and encouraged the creation of an organization
,limited to the employees He suggested that they elect officers, select a grievance
committee to take up complaints with the Inanagement, and fix a small amount
for monthly clues. He promised that the respondent would match whatever-
dues were agreed upon by a similar contribution After the conclusion of Tabin's.
talk the employees formed such an organization and decided to incorporate under-
the name of the T. P E Organization, and elected the following officers :
Ellen Kuszewski, President.
Margaret Machand, First Vice President.
Emma Johnson, Second Vice President.
Elsie Schmidt, Recording Secretary.
A board of directors consisting of 32 employees was also elected Later, sug-
gestions as to the contents of proposed bylaws were made by various members
and transmitted to the respondent's attorney who prepared the formal incorpora-
tion papers and the bylaws. The bylaws were adopted at the first meeting of the
board of'directors held on the 7th day of April, 1934. They fixed the dues at 25-
cents a month and limited membership to employees of the respondent.' The
'bylaws also provided for the appointment by the president of a captain of each
section of the employees. In actual practice, however, the directors acted as
captains. There appealed also provisions for an executive committee of 5 to be
appointed by the president from the directors or captains This executive com-
a The main plant was at 4119 Belmont Avenue. The bi anch plant was used to store
stock.
Although no other limitation appears in the bylaws, in actual practice the membership-
was ,limited to women employees.
TABIN-PICKER & CO. 937
mittee acted as grievance committee . Under the terms of the bylaws an annual
meeting was held the first Monday in April of each year, at which officers for the
-ensuing year were elected. ,
At the respondent 's suggestion , application cards were prepared for the T. P. E.
authorizing the deduction of dues from the members ' pay. Thereafter dues
were deducted by the respondent from the pay of members . By the end of April
T. P. E.' had 813 members. It has remained at about that figure since. The
respond ent,'duplicated the amount of the dues collected beginning in April 1934 to
April 6, 1937 , when the practice was discontinued . The total amount received
by the T. P. E. from both of these sources from 1934 to 1937, was $13,100 50. Of
this amount the respondent ' s contributions totaled $6 , 500.25 Most of this sum
was distributed to the employees in sick benefit payments , as were later dues
receipts.
The annual meetings of the T. P. E . were held off company property the afternoon
of the first Monday of April except in 1937 when , at the respondent 's request, due
to rush of work, the employees worked until 3 p in. and thereafter the T P. E.
meeting was held in the plant, at no cost to the T. P. E. However , the respondent
closed its plant the afternoon of each of the other annual meetings and by notices
previously posted in the plant advised its employees of the meeting The monthly
meetings of the captains were held regularly in the designers room of the plant
during the lunch hour at no expense to the T. P. E Routine business of the T. P. E.
was transacted at these meetings . Occasionally grievances concerning the piece
rates of pay previously filed by captains with the grievance committee headed
by the T. P. E. president , were discussed with Adrian Tabin at the meetings.
There is evidence , herein credited , that on occasions these meetings extended
over the lunch hour into the working period without loss of pay to the captains ;
and that the captains reported matters of importance to employee members in
their section on company time. There is also evidence herein credited that there-
after, including the years 1941 and 1942 , solicitation for membership in the T. P. E.
was engaged in on company time and property by the captains and, in some in-
stances, by the foreladies and assistant foreladies of the respondent.
Early in the year 1941 the Union started an aggressive campaign for members
among the respondent 's employees . In February , Christine Myers , a spreader in
the cutting department , displayed a copy of the Union's proposed contract with
the respondent to some fellow employees during the lunch hour . Sally Manicki,
Myers' forelady , was present . Myers handed the contract to Manicki. After
glancing through it Manicki returned the document saying , according to Myers,
"My, but you certainly have been asking a lot " and then added that joining a
union was the last thing she would do because she knew too much about them.
Manicki testified that she recalled the occasion and admitted that the contract was
shown to her by Myers. She denied the statements credited to her by Myers
and testified that she returned the document to Myers saying , "I am a foielady.
I have nothing to do with this." In view of other anti -union statements and
activities of Manicki appearing in the record , her denial is not credited and it is
found that she made the statements substantially as testified to by Myers.
Frank Rountry , also of the cutting department , joined the Union in March
1940. He was the most active member among the employees of the respondent
in assisting the Union in its campaign . About April 11, 1941, Rountry met Sol
Tabun, supervisor over the cutting department , on the street as he was leaving
the plant. According to Rountry , Tabin asked him "what Tabin had ever done"
to Rountry that the latter had " turned against him" and was doing "what he was
doing now" ; that it would not do Rountry any good and he would be "left holding
the bag"; that he Tabin had belonged to a union 25 years before and knew they
were "no good." According to Rountry Tabin then added, "You will find out
938 DEICTSTONIS OF NATIONAL LABOR RELATION'S BOARD
if you will just be nice to Tabin he will be alright with you." Sol Tabin testified
that he did not recall talking to Rountry on this occasion. He denied the above
statements and asserted that he never discussed unions at any time with anybody.
His denial is not credited in the light of the anti-union activities of the respond-
ent herein found, particularly in the cutting department. It is found that Sol
Tabin made the statements substantially as testified to by Rountry. In May,.
1941, according to Rountry, his foreman, Leonard Michaud, said to him during
working hours, ". . . unions would be alright if they were run right . . ," and
then added that he had found out that unions were "a racket" and he had no
use for them. This testimony was denied, by Michaud, but on all the record
the denial is not credited and it is found that Michaud made the statements
attributed to him by Rountry.°
In May 1941, Bernice Zelek was assistant forelady in the cutting department
and was also a captain for the T. P. E. At a captain's meeting on May 26, Zelek
raised the question as to what the employees were doing about the Union and
its activities Bertha Siewert, president of the T. P. E' replied that "Anybody
who believes all that trash about the union is just plain crazy." The following
day, Sally Manicki, Zelek's forelady, told her ". . . that Mr. Tabin thought there
were too many girls on the floor now." Zelek was then demoted from assistant
forelady to an ordinary worker. Manicki testified that, at the time and there-
after, she did not need an assistant. However, when Manicki went on her
vacation the following June she appointed Bernice Bochat as' her assistant,
although Zelek was there and available.' Zelek resigned from the T. P E and
joined the Union on June 6, 1941. At the same time a Union pamphlet publi-
,cized that Zelek and others had taken this action. A few days later Manicki
said to her, "Now you know why you are no longer my assistant." Zelek asked
Manicki if it was because she,had joined the Union, and Manicki replied, "What
do you think?" About this time, Manicki asked Zelek why she had quit the
T. P. E. and joined the Union, and what her "personal gain was." At that time
Manicki. also commented that she hoped Zelek had done the right thing, because
if she had not ". . . It would be just too bad " Although Manicki denied these
statements, her denials are not credited It is found that Zelek was demoted
as part of a campaign on the part of the respondent to discourage interest in
the Union among its employees.
On June 6, 1941, Christine Myers authorized the Union to publish her resig-
nation from the T. P. E. in a leaflet which was distributed around the plant.
'Although Myers did not formally resign from the T P. E, or request that
organization or the respondent to cease deducting her dues to the T. P. E., no-
dues for Myers were deducted after the publication of the above leaflet.
In June, 1941, Adrian Tabin, at a conference with the plant foremen and
foreladies quoted the Wagner Act and told the supervisors that the respondent's
employees had a right to join or not to join a union as they saw fit, without
interference on the part of the management. He instructed the foremen- and
foreladies that it was their duty to remain impartial and not to interfere in
any way with the employees in their organizing l efforts. Tabin reiterated
"As found in subdivision III-B, infra, Bountry was later discriminatorily laid off and
finally discharged. t
° Siewert was elected president of the T. P. E. in 1937 and has held that office con-
tinuously since that time.
s Manicki testified that her vacation was the last two weeks in June 1941 and she ap-
pointed Bocbat as her assistant for the 2-week period only because she knew that Zelek
would take her week vacation the last week in June There is no evidence ' that Zelek was
offered and refused the appointment Furthermore , the undersigned does not believe that
Bochat's appointment was temporary . Superintendent King testified that Bochat was a
supervisor in July, 1941.
.I
TABIN-PICKER & Co. 939
these instructions at frequent later meetings of the foremen and foreladies.
There is no evidence, however, that the rank and file of the employees were
advised of these instructions or knew of them, or that the respondent made any
effort to remove from its employees' minds the effects of the respondent's prior
domination and support of the T. P. E. There is credible evidence that, during
this period of the Union's greatest activity ° in the plant, the respondent per-
mitted Bertha Siewett, president of the T. P. E, Elsie Schmidt, who continued
to be its secretary, and other officers and members, to engage in T. P. E activities
in the plant both on and off company time. This solicitude for the T. P. E.
was in marked contrast to the respondent's attitude towards employee members
of the Union or those suspected of being members as hereafter appears
In July 1941 Esther Lindholm, a member of the T. P E., joined the Union
but did not resign -from the T. P. E, nor request the respondent to cease de-
ducting her monthly dues. On August 28 of that year a copy of the Union
paper "Good News" was distributed, around the respondent's plant. The paper
contained a picture of Lindholm and two other girls, over a story about a visit
they made to a number of union dress shops No further dues were deducted
by the respondent from Lindholm's wages after August 8, 1941.10
Jean Rainner, an employee in the cutting department, joined the tinion in
July 1941. The following October or November, Max Effron, the respondent's
office manager and a supervisory employee, met Rainner on the street one
Saturday night. Effron told Rainner according to the latter that she should
not have joined the Union, that she should have seen "the boss" before she joined.
Effron then told Rainner that he had a complete list of employees who were
members and non-members of the Union, and added, ". . . If this keeps up we
will have to give the work out to outsiders. We will have to close the shop
down." Effron admitted having a conversation with Rainner about the time
stated but denied he said anything about the Union. He'testified that Rainner
had previously requested a loan from the company which he had refused to
make and the conversation had to do with his reason for refusing the loan.
The office manager's explanation of the nature of the conversation is not con-
vincing, particularly in view of the anti-union record of the respondent as herein-
appears. It is found that Effron made the statements substantially as testified
to by Rainner.
On November 6, 1941, .the Union paper "Good News" published an article
favorable to unions written by Bishop Shell of the Catholic Church, which was
distributed in front of the plant. Referring to the Bishop's article, Sally Manicki
asked Bernice Zelek if it was right to drag the Church into "this mess." About
15 minutes before the beginning of work on the morning of November 25,
Christine Myers, who as heretofore found was employed on the fourth floor,
was on the second floor passing out some Union literature Nathan Picker, the
respondent's secretary-treasurer, saw what she was doing and told her to stop
handing out the literature and return to her department, according to Myers.
Picker fixed the time "after November 25" during the lunch period. He ad-
mitted sending Myers back to her department but denied that he said anything
about not handing out literature. He was not asked,and did not deny that
Myers was at the time handing out literature. In the light of other, events
that transpired on November 25, as- will hereafter appear, Myers' version of the
time and the statement are accepted Later in the day the respondent caused to
be posted on its bulletin board a notice prohibiting employees from going from
6 As heretofore found, the Union inaugurated an aggressive campaign the first of the
year 1941 . This campaign continued throughout 1941 as well as 1942
10 As appears in subdivision III-B, infra, Lindholm was discriminately discharged in
January 1942.
I
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one department to another "during working hours or at any other time" under
penalty of immediate dismissal. Prior to this time any rule prohibiting em-
ployees from going from one department to another when off duty, was not
enforced.
The respondent attempted to justify the prohibition on the ground that it had
been the practice of the women employees particularly, during the lunch hour,
to go from one department to another, and eat their lunch and visit in the working
sections ; that, as a result, considerable spoilage to material resulted from coffee
and food stains and other causes, and complaints were made by employees of the
loss of personal property. However, there is credible evidence that after the
notice was posted, T. P. E employees were permitted to go to other departments.
Bertha Siewert, president, and Elise Schmidt, secretary, respectively of the
T. P. E., as well as captains of that organization, went to various departments in
the plant during the lunch hour without any apparent restraint 11 On the other
hand,.Esther Lindholm, known to be active in the Union at the time, was promptly
discharged when she visited a department other than that,in which she worked
during the lunch hour, as will hereafter appear.' -The respondent admits that it
continued its previous practice once or twice a week of displaying its finished
dresses for sale to its employees in the aisles of the departments during the lunch
period ; that on these occasions employees from other departments were permitted
to inspect and purchase the dresses, but contends they were not permitted to
leave the main aisle in the department. The respondent has always,provided
locker space to protect its employees' personal effects. After November 25, em-
ployees continued to eat their lunch at the tables and machines in their sections.
There is credible testimony that visiting employees did not remain in the main
aisles. It is therefore found that the,prohibition against going from one depart-
ment to another during the lunch hour was not impartially enforced, but was
employed by the respondent to restrict the activities of the Union while the activi-
ties of the T P. E were not equally restricted.
Francis Gunning, of the single needle department, testified that about November
or December 1941, her forelady, Fannie Schwartz Fuchs, asked her during working
hours in the presence of other employees to join the T. P. E , saying that the
employees who did not join that organization would be laid off because she
would know they had joined the Union. According to Gunning, Fuchs also said
at, the time that the Union was no good and ".- . . the girls were crazy if they
joined the union ; this place will never be a union." Gunning quit her job in
March, 1942. She joined the Union early in 1941, but was not a member at the
time of the hearing. Fuchs denied the above testimony of Gunning, although she
admitted that before she had been appointed forelady, about 1937, she had been
a member of the T. P. E. Gunning was a disinterested witness and impressed
the undersigned as a reliable one The denials of Fuchs are not credited and
it is found that she made the statements substantially as testified to by Gunning.
In February, 1942,' after, working hours, Pearl Gittler Whelan was in a
drug store near the plant sorting cards containing the names of prospects for
the Union. Nathan Picker came over to her and inquired what she was doing.
Whelan replied that she was looking over the cards of the girls she was going
to visit that evening -Picker asked her what she was doing it for, whereupon
Whelan replied,'". . . for 76 cents an hour . . . when we get our union, con-
,tract." Picker rejoined, "Don't you see it makes no difference to me whether
11 Christine Myers was one of several witnesses who testified as to the violations of the
rule. During her cross examination the respondent sought unsuccessfully to obtain certain
data she gave the Union concerning these incidents. The testimony of the other witnesses
in this respect is ample to sustain the above finding.
11 For discussion of Lindholm's discharge, see Subdivision III-B; infra.
TABIN-PICKER & CO. , 941
I pay the girls 76 cents an hour or a dollar an hour? All that the union wants,
from the girls is their dues"" On October 26, 1941, Whelan invited Clara
Ciski and other employees to attend the October 29 meeting of the Union above
referred to, and added that "fire works" were expected. That afternoon Whelan
was discharged because she was responsible for "a lot of commotion, aggrava-
tion" and "loss of production." "
On October 27, 1942, during the lunch hour, Frank Rountry distributed in'his
department a circular announcing the October 29 Union meeting. Later that
day Roundtry was discharged for "disrupting production." 15
Concluding findings
The facts as found above establish that the respondent initiated the forma-
tion of the T. P.. E. in 1934 and thereafter assisted and supported it until the
spring of 1937. Counsel for the respondent, in the oral argument, conceded this
to be the fact. In the spring of 1937, after the Supreme Court of the United
States sustained the constitutionality of the Act, the respondent discontinued
its money contributions to the T. P. E. In all other respects the respondent's
attitude toward, and its relationship with, the T. P. E. continued thereafter as
before. The first Monday in April of each year the plant closed to permit the
employee members to attend the annual T. P. E. meeting. Monthly meetings
of the captains continued to be held on company property without charge during
the lunch period and occasionally the meetings ran over into the working periods
without pay deductions for the time lost. Captains were allowed to report
matters of interest in meetings to their section members on company time.
Solicitation for members was engaged in on company time and property by
T. P. E. officials, and in some instances, by foreladies and assistant foreladies
of the respondent. When the Union began its aggressive campaign for mem-
bers among the respondent's employees in 1941 Adrian Tabin repeatedly in-
structed his employees to remain neutral. The employees, however, were not
notified of these instructions and had no knowledge of them so far as the. record
discloses. No effort was made by the respondent to dissipate the effects of its
previous domination and support of the T P. E. On the contrary, it con-
tinued to permit T. P. E. activity while at the same time, by various devices,
it sought to restrict Union activity and discourage membership therein. By
the above acts and course of conduct the respondent dominated and interfered
with the administration of and contributed support to the T. P. E. subsequent
to 1937. '
The undersigned therefore finds that the respondent has dominated and in-
terfered with the formation and administration of and has contributed sup-
port to T. P. E. Organization. The undersigned further finds that by said
acts, and by the disparaging comments of Forelady Manicki to Christine Myers
in February and to Bernice Zelek in November, Foreman Michaud to Frank
Roundtry in May 1941, and Secretary-Treasurer Nathan Picker to Pearl Whelan,
in February 1942; by the disparaging and coercive statements of Supervisor
Sol Tabin to Rountry in April, Manicki to Zelek in June, Office Manager Max
Effron to Jean Rainner in July and Forelady Fuchs to Francis Gunning in
-November or December 1941, and by the demotion of, Zelek in May 1941, the
13 Although Picker admitted he may have met Whelan in the above drug stoic on occa-
sion , he denied the above conversation. His denial is not credited -
"The circumstances of the discharge of Whelan are discussed in detail in subdivision
III-B , infra. I .
11 The circumstances of Roundtry's discharge are discussed In detail in subdivision III-B,
infra.
942 IYEICISION5 OF NATIONAL LABOR RELATIONS BOARD
respondent has interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed in' Section 7 of the Act.
B. Discrimination as to hire and tenure of employment
1. The embroidery department
Prior to 1938 the embroidery necessary in the manufacture of the respond-
ent's dresses was done outside the plant by "home workers " Because of
the provisions of the Wage and Hour law, it became necessary in the fall
of 1938 for the respondent to change this arrangement It decided to estab-
lish an embroidery department, in the plant. On October 10, 1938, Otto
Buenzli, an experienced embroidery man, was imported from New eJrsey,
where he had previously been in business for himself, and placed in charge
of the new department which was located on the second floor. Two em-
broidery machines were installed and Abe Blum, also imported from New
'Jersey, operated one of the machines Otto Buenzli, after a short period of
training; placed his son Charles- in charge of the operation of the other
machine whenever necessary. Charles also spent some time in the pattern
department learning to be a pattern maker. In addition to the three men
named, nine women assisted in the operation of the two machines, and also
did hand embroidering These women were selected from those who had
formerly done the home work. Although Otto Buenzli was foreman of the
department, with authority to hire and fire, Ethel Johnson, under him, was in
charge of the women notifying them when to work, and directing them what
to do. As time went on work increased in the department and it was neces-
sary to employ two shifts., At the peak, in 1940, three shifts were working
and the department numbered 48 including extra help. When the three shifts
were working extra operators were employed for the machines. When the
third shift was discontinued in 1940, these men were transferred to another
department thereafter the department functioned • with Blum and Charles
Buenzll running the machines and working overtime when a second shift
was necessary. In the busy summer of 1941 some effort was made to obtain
another experienced operator but without result. The beginning of August
of that year, Irving Lipschultz, son of Ethel Johnson, was employed by Otto
and under his and Blum's direction and training was operating one of the
machines approximately a week later. He worked on the day shift which
quit at 4: 30 p. in. and Charles ran the machine on the second shift. How-
ever, it was CJiarles' practice to report at noon, or sooner, and in addition to
spending some time in the pattern department he also assisted Lipschultz when
necessary. He also ran the department during his father's temporary absence.
Otto was hired at $30.00 a week with the understanding that he would be
raised to $35 00 if he made good In a few weeks he was raised to $35.00, later
to $40.00 and the first of August 1941, to $50 00 a week. Charles Buenzli
started at $15 00 a week. When he began operating a machine he was raised to
$1'8 00 a week, then to $20 00 later to $22 00 and then to $25 00. In March
1940, he was changed to an hourly rate of 60 cents and was later increased
to 65 cents. The first of August 1941 his pay was raised to 80 cents an hour.
During this period Blum also received several raises , including one the first
of August 1941.10
"I The respondent . contends that the August 1941 increase was granted under duress and
because Otto had told Adrian Tabin in late July that unless increases were granted to
Otto , Charles and Blum , the summer work would not be gotten out in time for the trade.
Otto Buenzli denied he had refused to get the work out on time unless raises were ob-
tained The work in'tbe embroidery department was heavy in July but was finished by
the end of Augustin time for the market , after the raises were granted. However , Buenzli
TABIN-PICKER & CO. 943,
About/the first of August 1941, through the efforts of Frank Rountry, Otto
Buenzli -became interested in the Union. On August 9, Otto secured a number
of Union application cards and had them on his desk. During working hours
he and all the other employees in the embroidery department except Poldi Tvrdy
and Elizabeth Jensen,14 signed the cards and joined the Union, at his sugges-
tion. At a Union meeting on the evening of September 4, attended by all the
employees' in the embroidery department, Otto Buenzli expressed gratification
that his, department, was represented 100 percent in the Union. As was usual
at Union meetings} on this occasion Union buttons were distributed. On Fri-
day, September 5, the entire personnel of the embroidery department wore these
buttons while at work. During the course of the day, Albert Tabin, as well
as a number of supervisors, were in the department and observed the buttons.
There is evidence herein credited that during the day Sol Blum removed his
Union button. The department did not work Saturday following.
On Monday, September 8, Otto Buenzli, after seeing that the work was dis-
tributed and the department was functioning properly went home for the day at
about 9:30 a. m. leaving matters in charge of Charles Buenzli.
Shortly after Otto had left Albert Tabin appeared in the, department and
asked for him. Charles told, Tabin 'that his father was not there. Tabin
shortly thereafter left but about noon returned to the department again for a
few minutes. He asked Ethel Johnson what she was doing and on being told
that she was supervising, responded "supervising what?", but again left without
waiting for a reply. Albert Tabin testified that when he came to the depart-
ment that morning no one was working, except Blum and two of the girls, and
that he found a similar situation when he returned to the department that
noon and again in the afternoon. Blum corroborated Tabin and testified that
,he was at his machine, Helen Simoulis was spanning and Emma Niemczewski
'was "making up" work, and that the others were standing around joking,
laughing ,or otherwise engaged, but not working. Simoulis testified that the
only ones working were herself and Blum. Poldi Tvrdy testified that she could
not see what the men were doing but that all the girls, including- herself were
"'working and fooling" ; that they worked for a while until they caught up with
their work and then slowed down and "joked" some. On cross-examination
Tvrdy testified that Charles Buenzli was operating one of the embroidery ma-
chines." Charles Buenzli was in the armed forces of the United States at the
time of the hearing and did not testify. Lipschultz, and a number of the girl
employees denied that there was any loafing in the department on September
S. It is to be noted that September 8 was an "in between" season. The period
of the'summer rush was over and the department was'just starting on the fall
season's work. With this in mind and reconciling the conflicting testimony
above recounted the undersigned is convinced that at the 'time of Albert Tabin's
visits a number of the employees in the department were not working, and there
was some talking and laughing. It is so found.
About noon of September 8, after his second visit to the department, Albert
Tabin sent for Blum and asked him what was, happening in the department,
that he had never seen it "like . . . today." Bluin answered that there
had requested and had been promised the raises prior to July 1941. It is not contended
that the raises were out of line for similar work performed in the trade . No question
is raised as to the experience or ability of any of the three men It is found that the
August raises were granted reluctantly by the respondent in order to insure that it be not
caught in the market with out-of -season dresses.
i' Tvidy and Jensen Joined the Union on September 4, the former duiing working hours
at the request of Otto Buenzli, and the latter at the Union meeting
'R As will heieafter appear, Blum , Simoulis and Tvrdy were working for the respondent
at the time of the hearing They were 'called as respondent's witnesses.
944 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frequently was "fooling" and loafing in the department, especially when Otto
Buenzli was away, and that he had wanted to tell Tabin of the situation for
some time, but did not have an opportunity. Tabin told Blum to return to his
work and that he would send for him later in the afternoon, and in the mean-
while he would see if he could not "rectify the condition." About 4 o'clock that
afternoon Charles Buenzli phoned his father and urged him to come to the
plant: When Otto reached the plant a few minutes later he learned from
Charles that five of the cards of the women employees had been removed from
the time clock. It was unusual for cards to be removed that early in the week
and Otto sought the reason, first, from the time keeper and then from Max
Effron but without success. Effron intimated that if the cards were removed'
it was none of Buenzli's business. Otto then returned to the embroidery de-
partment where he found Albert Tabin who told him to report at the office.
At the office Tabin asked Otto where he had been that day and Otto responded
"What difference does it make?" There is sharp conflict between Otto and
Albert Tabin as to the rest of the conversation. Nathan Picker, who was "in
and out" during the course of the conference agreed only in part with Tabin's
version. Reconciling this divergent testimony in the light of the entire record
it is found that Tabin 'criticized Otto for not being at woiak and also for signing,
up his department in the Union, although the supervisors had been instructed
to remain neutral in labor matters At the conclusion. of the interview Cato
was discharged and handed his check and also a check for Charles Buenzli.
,Nathan Picker then followed Otto upstairs to the embroidery department and
remained there while Otto and Charles collected .the former's tools. He then
escorted the two of them out of the building. Neither Otto nor Charles have
since been rehired '
Within, a few minutes after his interview with Buenzli, Albert Tabin again
sent for Blum and instructed him to finish whatever work there was an the
department. He also asked Blum how many girls he would need. Blum esti-
mated he would need four girls. This talk with Blum was at or after 4:30
p. in., the respondent's closing time. The next morning before work Albert
Tabin sent for all the remaining employees in the department; ° except Blum
At that time he told them in effect that, it was impossible to continue the
department the way it was but that the women would work that day and he
would'then see what he could do. After the women employees had left the
office Tabin told Lipschultz he had no need for his services and gave him his
check. Lipschultz has not since been rehired. That afternoon 'after the con-
clusion of work Di Dominico, Mallard, Tvrdy, Jensen, and Suminaria were laid
off 20 The following Friday, September 12 Ethel Johnson and Laura Ciafaglia
were laid off. Until about October 15 the department functioned with Blum and
the two remaining women. Although Blum received no'increase in pay he took
over practically all the duties of Otto Buenzli, including the making of patterns
and estimating labor costs. Helen Simoulis did the work formerly performed
by Ethel Johnson. September 16 the Union filed its amended charge, alleging,
among other things, the discriminatory discharge of all those who had been
dismissed, with the-exception of,Ciafaglia.
On October 15, Helen Simoulis called Johnson, Ciafaglia, Summaria, Tvrdy
and Jensen and offered them employment. Johnson refused to return to work
when advised that the work was only temporary and that she would not1have
her old job Johnson has not been recalled since. Ciafaglia refused to return.
19 Tbese employees were Irving Lipschultz, Ethel Johnson, Jean Bisinella Summaria,
Gilda Di Dominico , Helen Simoulis , Poldi Tvrdy, Helen Mullard , Elizabeth Jensen, Enima
Niemczewski , Laura Ciafaglia.
20 Tbese are t'.le women whose time cards were removed from the rack on September 8.
TABIN-PICKER & Co. 945
b 1
She was not a witness and the record does not disclose the reason for her refusal.
Summaria accepted the offer but, after 2 weeks, was again laid off until Novem-
ber 9; 1941, when she worked to November 14. On December 17, she was offered,
but refused, a few hours' work. Summaria has not since been recalled. Tvrdy
and Jensen accepted the October 15 offer and worked steadily thereafter 21 Helen
Mullard and Gilda DiDominico have not been offered employment of any kind
since their release in September 1941.
However, before any of the employees laid off in September had been offered
employment , Lillian Fisher, a former temporary employee was hired and has
worked steadily since..
On October 15, 1941, there were at least six other women employed in the
embroidery department who, prior to September 9, had only worked in the de-
partment as temporary workers during rush periods, and had not been working
on September 8. Several new girls have been employed since that time. In
this group composed of former temporary workers and new employees there was
only one Union member. All the employees in the department as of September
0
8 were regular employees. The respondent, in recalling laid off employees, rec-
ognized seniority as to its regular employees. Changing styles have lessened
the demand for embroidery since the fall of 1941 and embroidering has been
superseded to some extent by "shearing," "puffing" and "nail heads." In the
summer of 1942 the respondent installed in the department a "puffing" and also
a "nail head" machine • However, from October 15, 1941, to the time of the
hearing the respondent employed as many in the department as it did on Sep-
temper 8, 1941. There is nothing in the record to indicate that the work done
by these employees could not be done by the experienced employees laid off in
September, 1941.
The respondent seeks to justify the discharge of Otto Buenzli on the ground
that he neglected his duties as foreman ; that there was too great a discrepancy
between his estimates of labor costs and the actual costs, and also violated
Adrian Tabin's admonition in 1941 to the supervisors to remain neutral in the
union activities of its employees As heretofore found, Otto was absent from
the plant for several hours on September 8, 1941. Otto testified that he had not
had his full vacation in August that year due to the press of work, and, after
getting the department started September 8, took the rest of the day off to apply
on his vacation There is other testimony that Otto had his 2 weeks' vacation
in August 1941, and was away from the plant for the full period but the respond-
ent produced,none of its records to support this testimony. It is a reasonable
inference, herein found, that the respondent's books would have shown whether
Buenzli was on vacation for 2 weeks in August. In view of the fact that August
was an extremely busy month and the respondent was at that time highly con-
cerned about production being completed in time for the market, Buenzli's tes-
timony that he did not take his entire vacation in August is accepted as the more
reasonable He was in charge of the entire department and his hours were
not regular, especially when more than one shift was in operation as was true
on September 8 Furthermore, it was not necessary for the foreman to be in
the department at all times. It is found that Otto did not neglect his duties in
taking a few hours vacation on September 8, during a slack period. The re-
spondent further contends that in any even Otto should not have left the plant
without permission. The contention is rejected. It is found that the embroidery
department's foreman in the course of his duties was expected to and frequently
left the department and sometimes the plant without obtaining permission.
21 About December 1, 1942, Jensen ceased won king when the Union called a strike. This
strike was in progress at the time of the hearing but involves issues other than those
with which we are here concerned.
N
946 DWISIONIS OF NATIONAL LABOR RELATIONS BOARD
. 011
One of Otto's duties was to make estimates of^ labor costs in his department
This was used by the pricer to fix the total cost of the dresses. The respondent
also contends that Ottb's labor cost estimates for his department in 1941 were
about 30 percent less than the, actual costs for that year. It submitted a com-
pilation from its records establishing that for the entire year 1941 the estimated
labor cost for the department was $9,738 25, less than the actual cost. The re-
spondent concedes that Buenzli's estimates of labor costs for the years 1939 and
1940 were reasonably accurate. Unquestionably the 1941 cost estimates show
too great a variance with the actual labor costs - This may be evidence of neg-
ligence, or inability, on the part of the estimators for that period. But begin-
ning September 8, 1941, Blum made the labor estimates. Insofar as proving
negligence on the part of Otto in his labor estimates the compilation is of little
value,, because it does not show what part of the cost estimate was made by
Otto and what part was made by his successor, Blum. Furthermore, nothing
was said to Otto about the inadequacy of his labor, estimates at the time of his
discharge. So far as the record discloses, prior to September 8, 1941, Otto was
never criticized in any way for his conduct of the embroidery department. Up
until September 5, 1941, when the respondent realized that the entire embriodery
department had affiliated with the Union, neither lie nor his department were
suspect.' It is found that the contention that Otto Buenzli- was discharged be-
cause of negligence in preparing 1941 labor estimates was an afterthought, not
considered by the respondent at the time of the discharge
It is also contended that Buenzli violated instructions to the supervisors to
remain neutral insofar as labor organizations were concerned when he signed
the employee's in the Union. As heretofore found earlier in 1941 Sol Tabin,
supervisor over the foremen and foreladies in the cutting department critized
Frank Rountry for his union activities, as did also foreman Leonard Michaud.
Forelady Sally Manicki demoted Bernice Zelek because of the latter's Union
activities during the same period under instructions from the general super-
intendent. None of these supervisors were reprimanded, ,or even criticized for
violating the instructions to remain neutral It is found that the neutrality
instruction to the supervisors was not enforced impartially, if at al122 It is fur-
ther found that the alleged violation of the instructions was not the reason for
the discharge.
The respondent does not contend that the discharges of either Charles Buenzli
or Lipschultz was disciplinary because of negligence in running the department,
although there is credible evidence that Charles was left in charge of the de-
partment by his father during the latter's temporary absences No other ex-
planation for their discharges.was made nor was their ability attacked. It is
found that they were both discharged because of union activity:
Nor does the respondent contend that the lay-offs of the women employees was
in any way disciplinary, but rather that such action was a'temporary expedient
pending the reorganization of the department. However, no reorganization was
effected other than placing Blum in charge ahd giving Simoulis the work Johnson
had previously performed. There is evidence herein credited that work that
could have been done in the embroidery department was removed to other depart-
ments immediately after September 8 Furthermore, when the fall busy season
necessitated additional help the respondent first employed Lillian Fisher, a prior
,temporary worker, before offering any work to the regular employee. At the time
it-offered temporary work to Summ'aria and inferior as well as temporary work to,
Johnson, it -hired other temporary workers who have since worked steadily. It
has also hired new employees. Moreover, even if the lay-offs were a "temporary
11 Cf In the Matter of Boeing Airplane Co, etc, et al, 46 N. L R. B. 267.
TABIN-PICKER & CO. 947'
expedient" pending the reorganization of the embroidery department, the record
clearly reveals that they were the direct consequence of the discriminatory dis-
charge of Otto Buenzli. Despite the respondent's contention that no personal
animus existed towards these laid-off employees, the resultant discrimination
affected them as fully as it affected the intended victims.' It is found that the
lay-offs of the women employees in September were not necessary for reorgan-
ization purposes and were not temporary dismissals; that the women employees
involved were actually discharged because of union,activity in the embroidery
department. r,
The undersigned therefore finds that the respondent has discriminated in regard
to the hire and tenure of employment of Otto Buenzli, Charles Buenzli, Irving
Lipschultz, Jean Bisinella Summaria, Helen Mullard, Polite Tvrdy, Elizabeth
Jensen, Gilda Di Dominica, Ethel Johnson and Laura Ciafaglia, thereby discourag-
ing membership in the Union, and has interfered with, restrained and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2 Frank Rountry and Pearl Glitter Whelan
Frank Rountry . Frank Rountry worked as a cutter on the fourth floor , starting
in 1935 He joined the Union March 1, 1940 About January 1 , 1941, he started
wearing his Union button at work and was thereafter the most active employee
in the plant in soliciting memberships for the Union, and distributing notices
of the Union ' s biweekly meetings , as well as other Union literature . On Satur-
day, March 14, and the following Monday , March 17, 1942 , Rountry did not work.
About 2 o 'clock on Monday Rountry 's wife phoned Foreman Michaud that
Rountry was not feeling well. Michaud inquired when he could report and
was told by Mrs. Rountry that she did not know. On hearing this, Superinten-
dent King sent Max Effron, the office manager to Rountry ' s home to see if he
was really sick . Effron, accompanied by Jacob Bissing , an employee also in
the cutting department , who was a, member of the T . P E., went to Rountry's
home Monday afternoon about 3 o'clock , where they found Rountry with his face
somewhat swollen and complaining of a decayed tooth Effron told Rountry
thete was considerable work and he was needed in the plant Rountry agreed
to report the next morning if he was well enough . Effron and his companion
then left but about an hour later Effron returned with a Dr Hoffman, who
examined Rountry . 24 After Effron and the Doctor left , Rountry went to his own
physician , Dr. Clark, and was examined . 25 That evening Effron reported to
ss Cf Hatter of Aineracgn Rolling Mill Company and Steel Woikeas Organizing Convmst-
tee, Local 1865, affiliated with the C. I 0 , 43 N . L R B. 1020, 1149 , 1154-1155; Matter of
Lexington Telephone Company, General Telephone , Company and International Brotherhood
of Electrical Workers , affiliated with the A F. of L, 39 N L. 'R. B. 1130, 1149 and cases
cited therein.
24 Effron explained that he retui ned with a doctor because Rountry at fin st claimed- be
had been injured by a fall in the plant and that a physicians examination and report to
the insurance company carrying the respondent's compensation insurance was advisable.
This explanation is rejected in view of the denial of Rountry that he made the above
statement , and the fact that no report was made to the insurance company
25 There is some discrepancy in the diagnosis of the two physicians Dr. Hoffman was
in the United States Army at the time of the bearing and was not available as a witness.
According to Effron, Dr Hoffman , after examining Rountry , stated at the time that
Rounry had a decayed tooth, but that in his opinion the swelling on Rountry 's face and
discoloration around his eyes was due to bruises Dr Clark testified that Rountry com-
plained of pain in his face, which was somewhat swollen , and that he told Rountry, after
examining his mouth , that his condition was probably due to neuralgia , caused by infected
teeth. Dr Clark testified that he "didn 't notice" any discoloration or bruises on Rountry's
face . Without attempting to resolve the conflicting opinions as to the cause of the condi-
tion , it is clear and the undersigned finds that Rountry on March 16 , 1942 , was unable to
work because of poor physical condition.
948 DECISIONS OF NAtTIONAL LABOR RIELATIONR BOARD-
Superintendent King that Rountry had a swollen face and it looked like he
might have been in a fight . The next morning when Rountry reported for work,
King sent for him and asked Rountry why he had not been to work. Rountry
started to explain but King cut him off, and said , "Rountry, according to what
we find, you have not been telling the truth -You must have been in a fight, and
for that reason I will have to lay you off for two weeks , because we can't have
people working for us who are going to retard production , because by you staying
away from the cutting room, you are retarding production throughout the plant."
At the time , King also criticized Rountry for not calling up in time.
There is, evidence undisputed and herein credited that the ordinary work
week in the respondent 's plant ran from Monday through Friday ; that it was
optional with the employees whether they should work overtime on Saturdays
when occasion required . It is further found that any 'rule of the plant that
employees were to report absences was not enforced . There are a number of
instances of employees absent for a day of two who failed to report and who
were not even reprimanded . There is no evidence of any other employee who
was penalized by the respondent for failure to report his temporary absence
from work . Rountry had been absent a' number of times previously without
reporting , and had not been penalized . Furthermore , it is to be noted that
Rountry did send word early Monday afternoon 26 The respondent never before
had occasion to sent a representative to an employee 's house to check the
reasons given for a temporary absence. It sought to justify investigation of
Rountry on the ground that he was in the habit of drinking intoxicating liquors,
but the contention is rejected as not convincing 27 Rountry admitted that he
took a drink occasionally , but there is insufficient evidence that he was at any
time intoxicated at work He had worked for the respondent since 1935 and
was an efficient worker. It is significant that no criticism of Rountry occurred
until he became active in Union affairs . / In view of all the circumstances and
in the light of the prior disparaging statements about the Union and Rountry's
activities therein by Sol Tabin and Michaud heretofore found 23 the undersigned
finds that Rountry was laid off because of his union activities.
On Rountry's return to work, lie' continued his union activities , including the
distribution of literature and notices of Union meetings when occasion required.
During the lunch period of October 27, 1942 Rountry distributed in the cutting
department posters advertising a Union meeting the, following Thursday night,
October 29 . The poster referred to a strike at "The Hornell plant of Tabin" and
queried "how will it affect you 9" 26 About 1 • 45, Superintendent King came to
Rountry and accused him of distributing the posters during working hours.
Rountry admitted that he had distributed the posters but asserted that lie had
done so during the lunch period. About 3: 45 Adrain Tabin sent for Rountry
and, after accusing Rountry of "disrupting production" by passing out Union
posters in the plant in violation of a promise 30 not to do so, discharged Rountry.
26 Rountry testified that he did not have a telephone in his home, and that the delay
in telephoning on Monday was due to the fact that it was raining and his wife had to use
a neighboring phone to notify the respondent. This testimony was not challenged and is
credited
27 Michaud testified that on two mornings in the latter part of 1941 Rountry came to
work "feeling pretty high", that he asked Rountry in each instance not to "do that any
more" , and that on both occasions Rountry worked the entire day. It is inconceivable
that the foreman would have permitted Rountry to pursue his important work of cutting
material if he was intoxicated
2 See subdivision III-A, supra.
29 The Hornell plant has reference to Hornell Industries, Hornell, New Jersey, a print-
ing, finishing and dyeing plant, officered by the respondent's officials which supplied the
respondent with some of its work. '
30 Both Leonard Michaud, Rountry's foreman, and King testified that Rountry earlier in
TABIN-PICKER & CO. 949
As heretofore found the respondent permitted the captains in the T. P E to
hold their monthly meetings on company property, and to some extent on com-
pany time. No restrictions were placed on the activities of the T. P E. in
the plant. Indeed its activities werie assisted in some instances by supervisors,
while at the same time supervisors and officials of the respondent criticized the
Union and its activities. With no siiniliar restriction imposed on the T. P E,
it is found that the attempt to muzzle the activities of Rountry by exacting a
promise` from him not to distribute union circulars in the plant constituted
interference under the Act." The respondent also contends that the statement
in the posters about a strike at Hornell was untruthful because the Hoinell
strike had been settled on October 22 Respondent does not charge Rountry
with being the originator of the inaccurate statement, but only with distribu-
tion' of the posters. In the light of the respondent's anti-union record herein
found and other events transpiring on October 27, as hereafter appears, the
undersigned is of the opinion, and finds that the reasons advanced by the re-
spondent to justify the discharge of Rountry, are pretexts and afterthoughts
and that, the real reason' for Rountry's discharge was his aggressive acts on
behalf of the Union.
Pearl Gittler Whelan. Pearl Whelan worked for the respondent from Febru-
ary 1937 to October 27, 1942, in the single needle department on the second
floor. She resigned from the T. P. E. on June 6, 1941, and two weeks later
began wearing her union button at work. Next to Rountry, she was the most
active Union member in the plant, and spent a great deal of time outside work-
ing hours soliciting members and inviting employees to Union meetings. As
neretofore found'" Nathan Picker, in February 1942, disparaged the Union and
Whelan's• activities,on•.its behalf. For several days prior to the October 29,
1942, Union meeting, heretofore referred to,' Whelan was active in inviting both
Union and non-union employees to the meeting. In some instances, Whelan told
some of the employees that there would be "fireworks" at the meeting and
broadly hinted the possibility of a strike in the plant of the respondent, starting
Friday, October 30. - The afternoon of October 27 33 Adrian Tabin heard rumors
of a possible strike the following Friday being circulated on the second floor.
He immediately investigated, and traced the rumor to Clara Ciski. He sent
,I-for;Ci ki,",who admitted,,6eing•partially,responsible for rumors about "fireworks"
and a walk-out the coming Friday Ciski told Tabin that' she secured her
information a day or so before from Whelan in the wash room during working
hours. Tabin then accused Ciski of telling the employees not to come to woik
the following Friday. Ciski denied this but admitted that she had said that
in the event of trouble on Friday, she would not report for work. Tahiti then
sent for Whelan about 3:45 and discharged her for starting a rumor which
"resulted in a lot of commotion, aggravation, loss of production . . It is
clear that the employees, as a result of the rumors, were somewhat excited and
there was discussion during working-hours of4the rumored strike. The respond-
ent's investigation of these-rumors-developed that the statements by Whelan
' to. Ciski and one other, girl were- spread by others sometimes in exaggerated
form These were reprimanded in spine instances, but none were penalized.
There is no evidence of actual loss of production as a result of the rumors. The
respondent contends also that Whelan was discharged for distributing circulars
October, had promised not to distribute Union circulars or posters in the plant . Although
denied by Rountry this testimony is.credited
31 Cleveland Worsted Mills Company and Textile Workers Union of America, 43 N -L
R B .4:,
a= See subdivision III-A supra-
It will be noted that this was the same day when Rountry was discharged by Tabin
as heretofore found.
5.3(1105-44-vol. 50 61
950 DRQLSIONIS OF' NATIONAL LABOR RELATIONS BOARD
and talking during working hours. There was no specific rule against dis-
tributing circulars during working hours, and any rule against talking was not
enforced. Furthermore the evidence is inadequate that Whelan. distributed
circulars in October 1942.
In view of Whelan's known aggressive Union activities, the undersigned is
convinced and finds, that as in the case of Rountry the reasons advanced for
Whelan's discharge are pretexts and that the real reason therefor was because
of her Union activities.
3 Discharges and lay-offs for violating rules
As heretofore found, the respondent on November 26, 1941, posted a notice
ii the plant forbidding employees to go from one department to another even
outside actual working hours. -About the same time, Rose Todd, the then plant
manager, Instructed the foremen and foreladies to lay, oft employees making
mistakes,in their work. - '
Esther Dtndholan. Esther Lindholm started to work as a spreader in the
catting department on August 1, 1939. Six'months later she joined the T. P. E.
On July 27, 1941, she joined the Union but did not resign from the T. P E nor
request the respondent to cease deducting her dues. However, as heretofore
found, when her picture appeared in the Union paper "Good News" on August
28, 1941, the respondent ceased deducting her T. P E dues.` On January 27,
1942, Lindholm left her department on the fourth floor for about 5 minutes during
the lunch period and went to the third floor to see a'friend. Nothing was said
to her at the time by the forelady on the third'floor or by her own forelady, on
her return. Later in the afternoon, however, her forelady, Helen Derbick,
told her 'that she was discharged for leaving her department during lunch hour.
She has not since been rec i1led Derbick discharged Lindholm under instructions
lof Rose Todd, the superintendent, although it was Lindholm's first offense and
it was customary merely to give warning for the first infraction of a rule.'
As heretofore found the rule was used by the respondent to restrict the 'activities
of Union employees in the plant, and was not impartially enforced 98 There
is no contention that Lindholm was' incompetent or was in any way neglecting
her work. '
The undersigned therefore finds that the respondent discriminated in regard to
the- hire and tenure of employment of Esther Lindholm, thereby discouraging
membership ui a labor organization, and-'interfering with, 'restraining and
coercing its employees in the exercise of the rights guaranteed in 'Section -7 of
the Act. '
The lay offs among the -spreaders
In late January and February of 1942, Forelady Helen Derbick laid off 'a num-
ber of spreaders in the cutting department, including Ann Noble, Renatta Zarnow,
Theresa Neubauer, Lucille Sisko, Ann Dobovitz, Mary Kuntz, Eleanor Enda,
Ganevieve Pawloski, Florence Kalish, Jean Milewski, Loretta Poteracki, and
34' See Subdivision III-A, 8apra. S - '
35 Minnie Fredrich , forelady in the single needle department of the tnird floor, testified
that Lindholm had been in her department on several occasions prior to her dismissal,
and she warned Lindholm about violating , the rule before finally reporting, the 'matter 'to
the 'superintendent Lindholm , denied specifically that , Fredrick- had ever spoken to her or
that she had ever previously violated the (rule. , Lindholnn ' s'forelady . while admitting she
discharged Lindholm on'instructions from the sujieiintendent , testified that it was Lind-
holm's first offense Fredrich 's testimony that these had been several violations is there-
fore not credited . However , even if there had been several previous violations by Lina-
,.holin , the tole was not impartially enforced as herein found
30 See subdivision III-A , supra-. ' ,
TABIN-PICKER & CO. 951
Virigina Milewski. All these women employees were laid off for one day with
the exception of the first two named, who were laid off for 2 days, because of
alleged mistakes in their work. At this time, all the spreaders were members of
the Union and this was known to the respondent. The complaint alleged that all
these lay offs were discriminatory. However, at the conclusion of its case in
chief, as heretofore found, the motion of Board's counsel was granted to dismiss
as to Ann Noble, Renatta Zarnow, Lucille Sisko, Ann Dobovitz, and Mary Kantz.
Neubaur admitted that she made an error in spreading the correct number of
jackets to a dress. Virginia Milewski admitted that she and her partner Loretta
Poteracki made a similar mistake. Jean Milewski and Florence Kalish were
accused of laying up the wrong color, according to the forelady. According to
Jean Milewski, she and her,partner were laid off for losing 9 dozen skirts. She
testified that' they did not make the mistake and when she and her partner
returned to work they were notified by the employee who sorted their work.`
that the missing skirts had been found. Milewski was unable to identify the
sorter. Her partner, Florence Kalish, did not testify. No sorter was produced
to verify the testimony of Milewski. The forelady's testimony was based on
memoranda she kept at the time of the lay-offs. Her testimony as to the nature
of the mistake, is therefore accepted. Eleanor Enda and her partner,, Genevieve
Pawloski were accused of losing 10 skirts. Enda testified that they did not
make the mistake and asserted that when they returned to work after the one
day lay off she and Pawloski were told by one of the sorters that the missing
skirts had been found. Although Enda was corroborated in this respect by
Pawloski, neither was able to identify the sorter nor was any sorter produced
to corroborate the testimony. It is to be noted that, at the time of their lay-off, ,
neither Enda nor Pawloski claimed to the forelady that there had been no mis-
take on their part. It is therefore found that Jean Milewski, Florence Kalish,
Eleanor Enda and Genevieve Pawloski, either made the mistakes as contended
by the respondent, or that the respondent had reasonable grounds for believing
and did believe that they made the mistakes. Although the circumstances sur-
rounding the announcement of the rule as to mistakes and its application to
the employees referred to herein, at the time when the Union was active in the
plant, raise a suspicion that its purpose was to interfere with the Union's cam-
paign among its employees, there is no evidence that the rule, which was a
reasonable one, was not enforced impartially. While all the employees involved
in the lay-offs were ,Union members, it should be noted that all the spreaders
in the cutting department were members of the Union. An error in the count-
ing or the spreading seriously interfered with the work of the cutters and sorters
and,could easily result in material damage. The penalty applied,,under the cir-
cumstances, was certainly not severe. - The undersigned is convinced-that,the
above named employees were laid off as a disciplinary action because they made
mistakes in their work. The respondents so believed. It is therefore found
that the respondent did not discriminatorily layoff Theresa Neubauer, Eleanor
Enda, Genevieve Pawloski, Jean Milewski, Florence Kalish, Virginia Milewski
and Loretta Poteracki.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,, 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
sr After, the "lay" has been spread by the spreaders and the cutters perform their func-
tion, the sorters'come to the table and sort the various pieces in appropriate bundles.
952 DEICfSfONIS OF NATIONAL LABOR RIEiLATIONSI BOARD
I
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce. '
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
-labor practices, it will be recommended that the respondent cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
,of the Act.
It has been found that the respondent has dominated and interfered with the
administration of, and contributed suppoit of the T. P. E. In order to effectuate
the policies of the Act and free the employees of the respondent from such dom-
ination and interference and the effects thereof, which constitute a continuing
obstacle to the exercise by the employees of rights guaranteed them by the Act,
it will be recommended that the respondent withdraw all recognition from the
T. P. E. as representative of the respondent's employees for the purpose of deal-
ing with the respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, and conditions of work, and to disestablish it as such
representative.
It has been found that the respondent has discriminated in regard to the hire
And tenure of employment of Otto Buenzli, Charles Buenzli, Irving Lipschultz,
Jean Bisinella Summaria, Helen Mullard, Poldi Tvrdy, Elizabeth Jensen, Gilda
DiDominico, Ethel Johnson, Laura Ciafaglia,. Pearl Gittler Whelan, Frank
Rountry, and Esther Lindholm. In order to effectuate the policies of the Act, it
will be recommended that the respondent offer employment to Otto Buenzli,
Charles Buenzli, Irving Lipschultz, • Jean Bisinella Summaria, Helen Millard,
Gilda DiDominico, Ethel Johnson, Pearl Gittler Whelan, Frank Rountry, and
Esther Lindholm, by offering them immediate reinstatement to their former or
substantially equivalent positions or any other available position for which they
are qualified, without prejudice to their seniority and other rights and privileges,
and that the respondent make them whole for any loss of pay they may have
suffered as a result of the respondent' s refusal to hire them by payment to each
of them of a sum of money equal to the amount which each would have earned
as wages from the date of his discharge to the date of the offer or reinstatement,
less his,net earnings' during such period.
It has,been,found that,prior to ^his,,discharge,pfaOctoberc27, 1942, Frank`Rountry
was discriminatorily laid off from March 17, until March 31, 1942; that Poldi
Tvrdy and Elizabeth Jensen were reinstated on October 15, 1941, and Laura
Ciafaglia was offered, but refused reinstatement on that date. It will therefore
be recommended that each of these three employees be paid a sum of money
equal to the amount which he or she would have earned as wages from the date
of the lay off or discharges to the date of the offer of reinstatement, less his or
her net earnings during said period.
From the foregoing findings of fact, and upon the entire record in the case, the
undersigned makes the following
CONCLUSIONS OF LAW
1. The International Ladies' Garment Workers' Union and T. P. E Organiza-
tion are labor organizations within the meani ng of Section 2 (5) of"the Act.
38 By " net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and , working
elsewhere than for the respondent , which would not have been incurred but for his unlaw-
ful discharge and the consequent necessity of his seeking employment elsewhere See
Matter of Crosvett Lumber Company , etc., 8 N. L. R. B. 440 . Monies received for work
performed upon Federal , State, county , municipal , or other work-relief projects shall be
considered as earnings See Republic Steel Corporation v. N L. R. B., 311 U. S 7.
TABIN-PICKER & CO. 953
2. By dominating and interfering with the formation and administration of
and contributing support to the T. P. E. Organization the respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (2) of the Act.
3 By discriminating in regard to the hire and tenure of employment 'of Otto
Buenzli, Charles Buenzli, Irving Lipschultz, Jean Bisinella Summaria, Helen
Mullard, Poldi Tvrdy, Elizabeth Jensen, Gilda Di Dominico, Ethel Johnson,
Laura Ciafaglia, Pearl Gittler Whelan, Frank Rountry and Esther Lindholm,
thereby discouraging membership in the International Ladies' Garment Workers'
Union, the respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
4 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
5 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act. 1
6. By temporarily laying off Theresa Neubauer, Eleanor Enda, Genevieve
Pawloski, Florence Kalish, Gene Milewski, Loretta Poteracki, and Virginia
Milewski, the respondent did not engage in unfair labor practices within the
meaning of Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Tabin-Picker & Co., Chicago,
Illinois, its officers, agents successors, and assigns shall:
1 Cease and desist from :
(a) Dominating and interfering with the formation and the administration
of the T. P. E Organization or contributing support to it or to any other labor
organization of its employees ; I
(b) Discouraging membership in the International Ladies' Garment Workers'
Union, or any other labor organization of its employees, by discharging any
of its employees or in any other manner discriminating in regard to their hire
and tenure of employment' or any term or condition of employment
(c) In any other manner interfering with, restraining or coercing its em-
ployees in the exercise of the 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 undersigned finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from the T. P. E. Organization as representa-
tive of any of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of employment
and other conditions of employment and completely disestablish the T. P. E.
Organization as such representative;
(b) Offer to Otto Buenzli, Charles Buenzli, Irving Lipschultz, Jean Bisinella
Summaria, Helen Mullard, Gilda DiDominico, Ethel Johnson, Pearl Gittler
Whelan, Frank Rountry and Esther Lindholm immediate and full reinstate-
ment to their former or substantially equivalent positions for which they are
qualified, without prejudice to their seniority and other rights and privileges;
(c) Make whole Otto Buenzli, Charles Buenzli, Irving Lipschultz, Jean
Bisinella Summaria, Helen Mullard, Poldi Tvrdy, Elizabeth Jensen, Gilda
954 -DIECCISIONiS OF NATr'IONAL, ,LABOR RELATIONS BOARD
DiDominico, Etliel Johnson, Pearl Gittler_ Whelan, Laura Ciafaglia, Frank
Rountry and Esther Lindholm for any loss of pay they may have suffered
by reason of the respondent's discrimination against them by payment to each
of them, respectively, of a sum of money equal to that which he normally
would have earned as wages from the date of the discrimination against him
to the date of the offer of reinstatement, less his net earnings during said period ;
(d) Post immediately in conspicuous places in and around its plant in
Chicago, and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to its employees stating: (1) that the
respondent will not engage in the conduct from which it is recommended
that it cease and desist in paragraphs 1 (a), (b) and- (c) of these recom-
mendations; (2) that the respondent will take the affirmative action set forth
in paragraph 2 (a), (b) and (c) of these recommendations; and (3) that the
respondent's employees are' free to become or remain members of the Inter-
national Ladies' Garment Workers' Union, and that the respondent will not
discriminate against any employee because of membership in that organization.
(e) Notify the Regional Director for the Thirteenth, Region in writing,
within ten (10) days from the date of the receipt of this Intermediate Report,
what steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply 'with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring
the respondent to take the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent has engaged in,unfair labor practices within the
meaning of Section 8 (3) Hof the Act with respect to Theresa Neubauer,
Eleanor Enda, Genevieve Pawloski, Florence Kalish, Gene Milewski, Loretta
Poteracki, and Virginia Milewski.
As provided in Section 33 of ,Article II of the Rules and Regulations of
the National Labor. Relations Board, Series 2-as amended, effective October
-28, 1942-any party may within fifteen (15) days from the date of the entry
of the order transferring the case to the Board, pursuant to Section 32 of
Article II of said Rules and Regulations, file with the Board, Shoreham
Building, Washington, D. C., an original and four copies of a statement in
writing setting \ forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding ,(including rulings upon all motions
or objections) as he relies upon, together with the original and 'four copies of
a brief in support thereof. As further provided in said Section 33, should
,any party desire permission to argue orally before the Board, request there-
fore must be made in writing to the Board within ten (10) days from the date
of the'order transferring the case to the Board.
J. J. FITZPATRICx,
Trial Examiner.
Dated February 15, 1943.