Comas Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 13, 1944

59 N.L.R.B. 208 (N.L.R.B. 1944)

In the Matter of JULIUS COHN D/B/A COMAS MANUFACTURING COMPANY
and INTERNATIONAL LADIES GARMENT WORKERS UNION , AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR
No. 15-C-953.-Decided November 13, 1944
DECISION
AND
ORDER
On July 15, 1944, 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 and
that it had not engaged in certain other unfair labor practices, and
recommending that he cease and desist from the unfair labor practices
found and take certain affirmative action, as set out in the copy of the
Intermediate Report attached hereto, and that the complaint be dis-
missed as to the remaining allegations. Thereafter, the respondent
and the Union filed exceptions to the Intermediate Report and sup-
porting briefs. Oral argument before the Board at Washington,
D. C., was waived by the parties. The Board has considered the
rulings of the Trial Examiner at the hearing and finds that no prejudi-
cial errors were committed. The rulings are hereby affirmed. The
Board has considered the Intermediate Report, the briefs and ex-
ceptions of the respondent and the Union, and the entire record in
the case, and hereby adopts the findings, conclusions and recommen-
dations of the Trial Examiner, with the additions noted below:
We agree with the Trial Examiner that the respondent's conduct on
February 4, 1944, was violative of Section 8 (1) of the Act. During
working hours on that day, the respondent, Julius Cohn, called together
his employees and read a prepared speech to them.' Interrupting and
following'the reading of the speech, Cohn answered a number of ques-
tions raised by several of the assembled employees. The respondent
contends, in his brief before the Board, that his statements on that
occasion are privileged as free speech. Viewing Cohn's remarks during
his prepared speech and answers together as a whole, we find no merit
in this contention.
' The full text of the speech is set forth in the copy of the Intermediate Report attached
hereto.
58 N. L. R B., No. 43.
208
COMAS MANU1 A TURING COMPANY 209
The burden of the respondent's remarks was a plea to his employees
to continue to bargain directly with him on an individual or group
basis as opposed to collective bargaining through the Union. To
buttress this plea; Cohn declared that "wages cannot be increased today
except by permission of the War Labor Board"; that the Company
itself was already taking steps to secure that permission; and that "it
is impossible to have a union here or raise wages." By such statements
Cohn indicated to the employees that there was little or no use in their
having a union to represent them.2 Then, after raising a question in
the minds of the employees as to whether the Union' was a "proper
union" to represent them in view of the Company's "discontinuance"
of the manufacture of ladies' garments, the respondent implied that
the selection of the Union might result in serious economic disad-
vantage to the employees. In answering a question of one of the em-
ployees, Cohn made clear what was implicit in these remarks by openly
threatening to close the plant before paying union wages. The re-
spondent then went on to state, in effect, that he would never agree to a
closed shop even if the Union were selected by the employees as their
exclusive bargaining representative. Such a statement, 'as we have
declared in two recent decision ,3 is itself unlawful for it bespeaks a
determination not to bargain with the Union on so vital a matter as the
closed shop, "a frequent subject of negotiations between employers and
employees." 4 Filially, in answering the questions of several employees
during and after the reading of the prepared speech, Cohn made other
threatening and coercive statements such as that the employees could
quit if they did not like the conditions in the respondent's plant.
It is manifest from the above brief description of Cohn's talk, and
we find, that the respondent's statements to his employees on February
4, 1944, constituted interference, restraint, and coercion within the
meaning of the Act.5
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Julius Cohn d/b/a Comas
Manufacturing Company, New Orleans, Louisiana, and his officers,
agents, successors, and assigns shall :
2 See Matter of Martin Food Products, Inc , 52 N , L. R B. 1131, where substantially simi-
lar remarks were found violative of the Act
' See Matter of Tampa Electric Company, 56 N. L. R. B 1270 and Matter of Cameron
Can Machinery, 57 N L R B. 1768.
1 National Licorice Co v. N. L R. B., 309 U. S. 350, 360.
2 We find that the coercive effect of the respondent ' s statements , as well as of the re-
spondent ' s conduct as a whole , was not neutralized by the casual remark at the opening-
of Cohn's speech that the "Company recognizes the right of every employee to join any
union that he may wish to join , and such membership will not affect his position with the
Company " See Matter of Agar Packing iE Provision Corporation , 58 N. L . R. B. 738
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from in any manner interfering with, re-
straining, or coercing his employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist Inter-
national Ladies Garment Workers Union, affiliated with the American
Federation of Labor, or any other labor organization, to bargain
collectively through representatives of their own choosing and to
engage in concerted activities, for the purpose of collective bargain-
ing 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) Post immediately in conspicuous places at his plant at New
Orleans, Louisiana, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to his employees
stating the respondent will not engage in the conduct from which he
is ordered to cease and desist in paragraph 1 of this Order;
(b) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent discriminated against Clemente Solares, Lena LaVite,
Rosalie Dumon, and Marguerite Ortolano, within the meaning of
Section 8 (3) of the Act, be, and it hereby is, dismissed.
MR. JOHN M. HOUSTON took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Marcel Mallet-Prevost, for the Board.
Mr. Lawrence A. Mclony, of New Orleans, La., for the respondent.
Mrs. Beulah Irwin, of Chattanooga, Tenn., for the Union.
STATEMENT OF THE CASTE
Upon an amended charge duly filed on March 29, 1944, by International Ladies
Garment Workers Union, affiliated with American Federation of Labor, herein
called the Union, the National Labor Relations Board, herein called the Board,
by its Regional Director for the Fifteenth Region (New Orleans, Louisiana),
issued its complaint dated March 30, 1944, against Julius Cohn, doing business
as Comas Manufacturing Company, 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) and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint and notice of hearing were duly served upon the respondent
and the Union.
With respect to the unfair labor practices the complaint alleged in substance
that the respondent: (1) on or about February 4, 1944, discharged Clemence
Solares, and thereafter refused to reinstate said employee, because of her ad-
COMAS MANUFACTURING COMPANY 211
herence to and activities in behalf of the Union; and (2) by these acts, and from
on or about January 27, 1944, to date through his officers, agents and employees,
by disparaging and expressing disapproval of the Union ; by urging, persuading,
threatening and warning his employees to refrain from joining or assisting the
Union; and by urging his employees to withdraw from membership in the Union,
had interfered with, restrained and coerced and was interfering with, restraining
and coercing his employees in the exercise of the rights guaranteed in Section 7
of the Act.
On or' about April 10, 1944, the respondent filed an answer, admitting certain
allegations 'of the complaint as to the nature of his business but denying that
he had committed any unfair labor practices.
Pursuant to notice, a hearing was held at New Orleans, Louisiana, from April
12 to April 15, 1944, inclusive, before the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The Board and the respondent were rep-
resented by counsel and the Union by its representative. All of the parties
participated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses and to introduce evidence bearing on the issues was afforded
all parties.
At the opening of the case, counsel for the Board moved to amend the complaint
so as to further allege that the respondent on or about March 13, 1944, laid off
and discharged Lena LaVite, and thereafter refused to reinstate said employee,
and on or -about March 23, 1944, failed- and refused to increase the wage rates of
Rosalie Dumon and Marguerite Ortolono, and thereafter refused to increase the
wage rates of said employees, solely by reason of their adherence to and activities
in behalf of the Union. The respondent's counsel ' requested about a week's
continuance of the hearing in order to prepare the defense to the new allega-
tions. The request for a continuance was denied. The motion to amend the
complaint was granted over respondent's objection. The respondent filed at the
first day of hearing a supplemental answer in which he' denied the commission
of any unfair labor practices as alleged in the amended complaint.
At the conclusion of the case, counsel for the Board and counsel for the re-
spondent argued orally before the undersigned. Although offered an opportunity
to do so, none of the parties filed briefs.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an individual doing business under the trade name and style
of Comas Manufacturing Company, in a plant located at New Orleans, Louisiana.
The respondent is engaged in the manufacture of men's pants and slacks for
civilian use. The respondent is also engaged in the manufacture of work clothes
for use by the United States Army. For a number of years prior to February
1944, the respondent also engaged in seasonal manufacture of women's jodhpurs
and slacks. The raw materials used during the 12-month period preceding April
1944, amounted in value to more than $50,000, of which more than 60 percent was
shipped to the plant from points outside the State of Louisiana. The finished
products produced during the same period of time amounted in value to more
than $50,000, of which more than 60 percent was sold and transported to points
outside the State of Louisiana.
The respondent employs approximately 60 to 70 persons in the operation of
his plant.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
International Ladies Garment Workers Union, affiliated with the American
Federation of Labor, is a labor organization whici admits to membership em-
ployees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
Organizational activities in the respondent's plant were first started by the
Union in the first part of October 1V43, and it does not appear, that any other
union had ever attempted to organize the plant Octavia Mack,' the floorlady,
was told by another employee concerning his union activity when it first started
or shortly thereafter.
At some time in January 1944, Mack was talking to some unidentified employees
while in the dressing room. During the conversation -lack stated, "I don't see
why they want to join the union. I think it is stupid. It is humbug."'
The evidence shows that by January of 1944, a considerable number of em-
ployees had become members of the Union On or about January 27, 1944, the'
respondent posted a notice on the bulletin.board in its plant to the effect that the
respondent would no longer engage in the manufacture of ladies' garments!
The fii•s't union meeting of employees was held on February 1, 1944. On
February 4, the respondent, Julius Cohn, read the following speech to his
employees in the plant during working hours : 4
„ Some of you have asked that I call you together to explain the position of
the,Company with respect to a statement that has been made to the em-
ployees to the effect that if you do not join the International Ladies' Garment
Workers' Union you will lose your jobs I will state the position of the
Company on this question unequivocally. This is an open shop in a true
sense of the word. Members of labor unions and non-members of labor
unions are employed without any discrimination whatever, and so long as
I am connected with the management of this Company the policy will con-
tinue the same. The Company recognizes the right of every employee to join
any union that he may wish to join, and such membership will not affect his
position with the Company. On the other hand, we feel that it should be
made equally clear to each employee that it is not at all necessary for her or
him to join any labor organization in order to hold his job, despite anything
that he may be told to the contrary. If you join such an organization, you
must realize that you will be forced to pay dues to the Union thereafter.
The Company has always dealt with its employees in full recognition of
the right of every individual employee or group of employees to deal directly
I Mack supervises the sewing department.
2 Angelina Prior testified that she heard Mack make the above statements and the under.
signed credits her testimony in this respect . Mack denied the statement attributed to her.
3 For at least 6 years prior to 1944, the respondent manufactured ladies' garments for
about 6 weeks in the late fall At about the time of the posting of the above notice, the
respondent had just completed an order for ladies' garments No such notice had ever
been posted by the respondent during prior years.
4 Cohn testified; in- substance, that he read the-above speech from a paper, that he first
told his employees that he was reading it so that he would not be misquoted , and that he
did not make any statements other than the above during his speech except to answer
questions of employees when interrupted by them some three or four times during the course
of or after the speech The undersigned credits Cohn's testimony in this respect. Wit-
nesses for the Board . testified that Cohn , while making his speech , sometimes looked at a
paper he was holding and at other times did not.
COMAS MANUFACTURING COMPANY 213
with me with respect to matters affecting their interest. If you , individually
or as a group , at any time have any matters which you wish to discuss with
us, we will be glad, as we have always been, to meet with you and discuss
them frankly and fully. It is our earnest desire to straighten out in a
friendly manner , as we have done in the past, any questions that you may
have in mind.
Of course , the important thing that all of us are thinking about is wages,
so let's talk about them a little. Where do they come from? They come,
from the money received from the sales of our product to our customers, and,
in order that sales may be made to provide the money for wages , we must be
very careful how we set the price of our product . If the price is too high,
we lose orders . If the price is too low, we lose money ; and in either event,
the money for wages is not there. You have a right to know , I believe, just
what the Company 's wage policy is. Our wage policy is to pay wages as high
as possible and still continue to be able to sell our product, get repeat orders
and keep as many people employed as we possibly can. Finally , it is to pay
wages as high as possible and keep the business sound financially so that
when the period of slack time comes after the War, we will have a strong
company and be able to go out and fight for the business that is going to be
so hard to get at that time. As you know, wages cannot be increased.today
except by permission of the War Labor Board. The Company , in cooperation
with the other firms engaged in the manufacture of men's garments, has
been taking steps for the last two months to have wage brackets established
in Dallas under which we hope to get permission from the War Labor Board
to install a system which will result in higher wages for you. These plans
were finally agreed upon at a convention of the Garment Industry which
took place this last week-end, and should become effective at an early date.
The International Ladies' Garment Workers' Union has had no part in these
plans. It has been a voluntary action on the part of the manufacturers of
men's garments.
As.you know , this Company has discontinued the manufacture of ladies'
garments . We are and will continue to be engaged in the manufacture of
men's garments . You will have to ask yourself , in reaching a decision as to
whether you wish to join this union, whether a union which by its name
discloses that it is interested in ladies ' garment workers is a proper union to
represent you. As I have stated above, we must compete with -the other
manufacturers of men's garments . In order to do so, our expenses and costs
of manufacture must not exceed theirs. If , on the other hand, all' of us
make more favorable arrangements for our employees at the same time, such
as have been under contemplation , we can go forward with that plan without
injury to any of us or our employees. If we are forced to deal with a union
that has had no part in these plans and who are primarily engaged in the,
representation of workers on ladies ' garments , we may be put at a very great
disadvantage . As I have stated above, we cannot pay higher wages than our
competitors pay and continue to be able to sell our products in competition
with them. We hope that, by the continuance of this policy, we will have a
strong organization when the War has terminated and thus be able to continue
a fair wage rate for you when business is slack.
It is reasonable to believe that our interests are mutual and can best be
promoted through confidence and cooperation
In conclusion , I wish to again emphasize that you do not have to join any
union in order to keep your job in this plant, and there is nothing that can
be done by the union or anyone else which would change this situation. Even
if the union should represent a majority of you and become the bargaining'
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent, we cannot be forced to sign a contract which makes it necessary that
you join-the union in order to keep your job.
It is undisputed that during Cohn's speech, Mack told Cohn to tell the employees
that they could have their releases if they were not satisfied.
It is also undisputed that Cohn was interrupted during his speech, that the em-
ployees were told they could ask questions at the end of his speech and that either
during or immediately after his speech, Cohn answered the questions of certain
employees. The testimony identifies the employees who interrupted or asked
questions as Angelina Prior, Rosalie Dumon, Margaret Duval, and Clemence
Solares. Prior testified, and the undersigned finds, that at the end of his speech
she had the following conversation with Cohn:'
... So after his speech I raised my hand to talk, and he recognized me, and he
asked me what was my name, and I told him, I started talking, and I told
him that I had joined the Union, not to hurt him or anybody, but I wanted to
better myself ; that I couldn't live on the wages that he was paying; and so he
told me that there was no union factory in this town.
* * * * * * *
He told me that there was no union factory in this town, and if I wanted
to quit he would give me my release. So I told him no, I had to work. I can't
quit. . . . he told me that he couldn't pay those wages here in New Orleans.
I told him, not far from here they have a factory. It has a union, and they-
pay twice more than they are paying here. I says, "I don't see why we can't
have a union in New Orleans." I told him Mobile, Alabama, and he says,
"Why don't you go to Mobile to work?" So I told him I had my home here-
I couldn't leave it. So then he told me again if I wanted my release, I would
get it. So I told him again, no, I had to work. So then he started telling me
it was impossible to have a union here or to raise wages. So I finally told him,.
"Mr. Cohn, you and I can't agree on that, so I will sit down."
At some point in his speech Cohn said , "Why on God's green earth did you -pick
on me to be the first."; and, "I will close my doors before I do that (pay union
wages )." He further stated that "a government man" had come to see him and
told him ... just who was in the union and who was not in the union." The
undersigned finds that Cohn made the above statements either when interrupted
in his speech by employees or when answering their questions at the end of his
speech
The substance of the above conversation was also testified to by Rosalie Dumon. As
to this conversation, Cohn testified that Prior said that she could not work for the wages
that he paid ; that he then explained that he hoped to be able to make some wage adjust-
ments ; that Prior mentioned she could get better wages in Alabama ; that he replied that
he did not "know anything about that" but that he could not pay more at that time ;
and that Prior then said , "* * * you and I don ' t see it the same way."
6 At the start of the hearing , the respondent requested a segregation of witnesses-
The undersigned granted this request over the objection of Board's counsel and , accord-
ingly, no witness prior to her own testimony heard the testimony of another witness.
The testimony of several of the Board's witnesses concerning Cohn's speech was similar
in many respects. For example, Ortolono and Corolla testified to the statement concern-
ing "a government man" and that Cohn said he would close his doors before paying
union wages ; Dumon and Corolla testified to the statement concerning "God's green earth.",
The undersigned credits the testimony of the above witnesses, especially since the state-
ments are altogether dissimilar to the wording of Cohn's speech, as found above, and there-
fore could not be construed as interpretations of statements made in the speech.
Cohn and a number of other witnesses for the respondent denied all of the above
statements attributed to Cohn. All of these witnesses were still in the employ of the
respondent and the undersigned got the definite impression that these employees were
anxious to please Cohn and Mack by their testimony, who were present throughout the
hearing. In numerous instaflces this attitude is apparent in the record. Moreover,
Cohn 's admission that he had conferred with a conciliator of the U. S. Department of
Labor shortly before the day of his speech is noteworthy . Accordingly, the undersigned
does not credit the denials of Cohn and other witnesses of the respondent in this respect.
COMAS MANUFACTURING COMPANY 215
As will be hereinafter discussed, Clemance Solares was discharged at the conclu-
sion of Cohn's speech on February 4. On Saturday, February 5, Amelia Ursin had
prepared a mass resignation letter addressed to the Union' On Saturday night
and all day on Sunday Ursin took this resignation letter to the homes of employees
and asked them to sign it. On Monday, February 7, Ursin brought the resignation
letter to the plant and asked other employees to sign it. She then gave it'to Ida
Thomas,' who solicited some further signatures. On February 7, Ursin sent the
resignation letter to the Union by registered mail.
Concluding findings
The undersigned believes and finds that the notice of employees of January
27 concerning the discontinuance of the manufacture of ladies' garments was
posted by the respondent solely for the purpose of discouraging membership in
and activities on behalf of the Union.' Cohn's explanation is moreover uncon-
vincing since the employees would not have expected to work on women's apparel
for many months. The following part of Cohn's speech, in the undersigned's
opinion, confirms this purpose:
As you know, this Company has discontinued the manufacture of ladies'
garments. We are and will continue to be engaged in the manufacture of
men's 'garments. You will have to ask yourself, in reaching a decision
as to whether you wish to join this union, whether a union which by its
7 The above letter was received in evidence. It contains the names of 17 employees,
one of which has been scratched out, and is dated February 7, 1944. Ursin testified that
she had the resignation prepared by her brother-in-law when one of the employees expressed
regret at having joined the Union.
8 Respondent's witnesses testified, in substance, that Ursin and Thomas, together with
some few other employees, are "utility" operators (capable of operating all types of
machines), and that Thomas does not give orders to or otherwise supervise the work of
any employees. Dumon testified that Ursin at one time took charge of the sewing depart-
ment during Mack's absence ; that for one-half day in December 1943, and on one other
occasion, Thomas took charge during Mack's absence ; and that on December 31, 1943, she
heard Mack tell Thomas to take her "place" if she (Mack) did not come to work on the
following Monday. Mack denied that she had ever asked Thomas to take her place or
that Thomas or any other employee had taken charge during her absences. Thomas also
denied Dumon's testimony in this respect. Ursin, in effect, denied that she had ever
taken charge during Mack's absence. The undersigned does not credit Dumon's testi-
mony in this connection, believing that if Thomas and Ursin had actually taken charge
during Mack's absence, the facts could have been easily established by a number of wit-
nesses. The undersigned does not attach any significance to the testimony of Board's
witnesses to the effect that Thomas gave out or told employees where to find work or
bundles on the Government line, especially since it does not appear from their testimony
she gave any orders to employees or otherwise supervised their work.
° As stated above, no such notice had been posted at the conclusion of orders for ladies'
garments in previous years. The testimony of several of the Board's witnesses reveals
that at the time of the posting of the notice they thought it was directed against the Union.
As to the reason for this notice, Cohn testified as follows :
The purpose of it was that we heard several complaints, they didn't like to make
jodhpurs, and we had a late order, and we then made some in January, later than
usual ; and we were having considerable trouble getting help, and we thought that
would be one way to let them know that we would not make them, particularly so
because we did not need to make jodhpurs at all ; we only made them when seasons
was slack, and now we had so much work, I was very anxious to put the production
into the most desirable things, and I thought that would be one means of satisfying
the girls, that they would not have to work on that, and thereby make the most of
them determine to stay on the job, if they were being influenced by that particular
feature of it.
That portion of Cohn's speech quoted above so clearly contradicts Cohn's testimony as to
his reason for discontinuance of the manufacture of ladies' garments that the undersigned
feels that further comment on the point is unnecessary.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
name discloses that it is interested in ladies' garment workers is a proper
union to represent you. As I have stated above, we must compete with the
other manufacturers of men's garments. In order to do so, our expenses
and costs of manufacture must not exceed theirs. It, on the other hand,
all of us make more favorable arrangements for our employees at the same
time, such as have been under contemplation, we can go forward with that
plan without injury to any of us or our employees. If we are forced to
deal with a union that has had no part in these plans and who are primarily
engaged in the representation of workers on ladies' garments, we may be
put at a very great disadvantage.
The undersigned further finds that, Cohn's speech, of February 4 was made
for the purpose and had the effect on employees of discouraging membership in
and activities on behalf of the Union. In this connection the record indicates
that the respondent's employees were not experienced concerning their rights
to self-organization and collective bargaining. The wording of the speech itself
clearly transcends expressions of personal opinion or freedom of speech. It is
coercive in that it subtly argues against membership in the Union, such argument
containing the implied threat that the plant at a future date might close if
forced to bargain witch the Union. This threat is self-evident from the following
portions of the speech :
. . . we must be very careful how we set the price of our product If the
price is too high, we lose orders. If the price is too low, we lose money ;
and in either event, the money for wages is not there.
If we are forced to deal with a union . . . who are primarily engaged
in the representation of workers on ladies' garments, we may be put at a
very great disadvantage. As I have stated above, we cannot pay higher'
wages than our competitors pay and continue to be able to sell our products
in competition with them. We hope that, by the continuance of this policy,
we will have a strong organization when the War has terminated and thus
be able to continue a fair wage rate for you when business is slack.
In order to make sure that his employees understood the import of his speech,
in addition to the above Cohn made the direct threat that he would close his doors
before paying union wages, together with other statements directed against the
Union, as has been heretofore found
That the notice of January 27 and Cohn's speech and statements of February 4,
had the desired effect on the employees is apparent from the successful efforts
of Ursin and Thomas on February 5, 6 and 7 in securing the resignations of 16
employees as members of the Union. In this connection it is, noteworthy that
the respondent only employs between 60 and 70 persons.
Accordingly, the undersigned finds that the respondent, by Mack's statement
concerning the Union, by the posting of the notice of January 27, by Cohn's
speech on February 4, and by his statements when interrupted or in answer to
employees' questions, has interfered with, restrained, and coerced his employees
in the exercise of the rights guaranteed them in Section 7 of the Act.`
The undersigned finds that Ursin and Thomas were not supervisory employees"
Further, there is no showing nor can any proper legal inferences be drawn from
10In making the above finding , the undersigned is not unmindful of decisions by the
courts in the American Tube Bending case , 134 F. ( 2d) 993, (C C A. 2), cert denied
320 U. S. 768. From the facts set forth above , the undersigned believes that the instant
case is clearly distinguishable from American Tube Bending.
11 See footnote 8, infra.
COMAS MANUFACTURING COMPANY 217
the facts that they were acting with the knowledge and consent, or were other-
wise acting as the agent of the respondent in securing the resignations While
it is difficult to believe that tLey would have engaged in such activities on their
own initiative, nevertheless the undersigned feels that the Board has failed in
its proof in this connection, especially since there is no evidence that either
Mack or Cohn knew of the mass resignation letter. Therefore, the undersigned
finds that the respondent did not interfere with, restrain, or coerce his employees
through Ursin's and Thomas' efforts to secure resignations of employees from
the Union.
B The alleged da.schaige of Cleine?ice Solares
Except for a short period about 4 years ago, Solares was employed by the
respondent for about twelve years prior to her discharge In December of 1943
she joined the Union. The record does not disclose any noteworthy activities
by her on behalf of the Union.
On February 4, 1544, while Cohn was making his speech to the assembled
employees. Solares interrupted him, commenting that Cohn was "a very good
boss." Towards the close of Cohn's speech when he mentioned cooperation,
Solares again interrupted him. saying that the girls in the plant did not "stick
together." At the end of the speech. some three or four employees asked ques-
tions, including Prior, whose conversation with Cohn has been heretofore
related.
After these employees had asked their questions, Solares said that there were
"too many tales being carried " She also mentioned at that time that she had
joined the Union Mack then made some statement to the effect that she had
given Solares her job, which Solares denied." At the conclusion of this argu-
ment, Mack told Cohn, "It will either be she goes or I will go" Cohn then dis-
charged Solares.13
It is undisputed that immediately after discharging Solares, Cohn told her
that he would ask Mack to give Solares her job back if she would apologize to
Mack: that Solares said she won](] apologize; that Cohn then told Mack of his
conversation with' Solares; and that Mack refused to reconsider her stand,
maintaining that either Solaies would have to leave the respondent's employ or
she would.
Upon due consideration of all the facts the undersigned is of the opinion that
Solares was discharged because of her personal differences with Mack, and
therefore finds that she was not discharged because of her membership in and
activities on behalf of the Union. It is undisputed that Solares and Mack had had
a number of arguments over "tale carrying" Mack had warned Solares that she
would discharge her on the next occasion The testimony of both the Board's
witnesses and those for the respondent clearly show that their argument on Febru-
ary 4 was confined to their personal differences. It is true that Solares mentioned
that she had joined the Union. but the evidence does not disclose that she previ-
72 Solares at one time had left the employment of the respondent She testified that
she had been rehired by a Mr. Lehman
'3 The above facts have been found in accordance with the testimony of Solares , Corolla;
Dumon and Ortolono , all of whom were Board witnesses However , only Solares and
Ortolono testified that Solares said she joined the Union. In some respects , especially as
to the sequence of events , the testimony of these four witnesses differ . Witnesses for
the respondent testified to substantially the same facts , excepting that their testimony
shows a more heated argument between Mack and Solares and that they did not testify
that Solares mentioned her union membership From the testimony of all witnesses, both
for the Board and the respondent .' it is apparent that the argument between Mack and
Solares was over "tale carrying" in the plant . It is undisputed that Mack and Solares
previously had had arguments over "tale carrying ", the last of which occurred about six
weeks before February 4, 1944 On that occasion Mack warned Solares that she (Mack)
would fire her "the next time."
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ously had been active on behalf of the Union. Further, the evidence shows that
immediately preceding Solares' discharge Prior told Cohn that she had joined the
Union and made other statements showing that she favored unionization. There
is no indication that Prior was in any manner discriminated against by the
respondent because of these statements. The undersigned is also impressed by
the fact that Cohn asked Mack to give Solares her job back. It does not appear
reasonable that he would have made this effort if Solares had been discharged
because of her union propensities.
C. The alleged lay-off or discharge of Lena LaVite
LaVite was employed by the respondent from July 1943, until her lay-off on
March 13, 1944. Except for the month of October 1943, when she operated a
sewing machine, LaVite's work was confined to pressing. She joined the Union
on February 1, 1944.
On March 13, 1944, Cohn told LaVite that since Army goods were not being
pressed;" there would be no more pressing work for her until March 25. He
told her, however, to see Mack who probably would have some work for her.
LaVite told Cohn that she did not want any work "upstairs." On March 14 or 15,
LaVite returned to the plant and asked Cohn for her release and on March 16 she
secured employment elsewhere. About March 30, LaVite telephoned Cohn and
asked him if any work was available for her, to which he replied that there was
none but that he would call'her if he needed her. As of the date of the hearing,
the respondent had not recalled LaVite to work.15
From the above facts the undersigned concludes and finds that the respondent,
by the lay-off on March 13, did not discriminate against LaVite because of her
membership in or activities on behalf of the Union. The Board contends that
discrimination is shown by reason of the undisputed facts to the effect that other
pressers were employed by the respondent after March 13 and that some few
days prior to the hearing there was a sign advertising for pressers in front of
the respondent's plant. However, there is no showing that LaVite was active
in behalf of the Union or even that the respondent had knowledge of LaVite's
membership in the Union. Moreover, Cohn testified without contradiction that
the respondent's commercial work required very little pressing and that pressers
hired after LaVite's lay-off did not work steadily.
D. The alleged discriminations in regard to wages against Rosalie Daemon and
Marguerite Ortolono
Ortolono had been employed by the respondent about 7 years and Dumon about
2 years prior to the hearing. At all times while employed by the respondent,
Ortolono operated a bar tacking machine. Dumon, during her employment, oper-
ated looping, button holing and serging machines, but about two weeks prior to
the hearing she was transferred to bar tacking. Ortolano and Dumon both joined
the Union in December 1943.
On March 8, 1944, the respondent filed an application for an increased wage
scale with the War Labor Board. By letter dated March 21, 1944,'the War Labor
Board approved the following hourly rates for machine operators : first-class,
$.50; second-class, $.45; third-class, $.40. In accordance with this scale, the
14 Shortly before or at about this time, Cohn had received a letter, dated March 8, 1944,
from the Army advising him that the specifications governing his contract for trousers
did not require pressing. Prior to receipt of this letter, the respondent had been pressing
Army trousers.
11 The above facts were testified to, in substance , both by Cohn and LaVite.
COMAS MANUFACTURING COMPANY 219
respondent immediately granted increases to most of his employees. The first
increases took place for the pay-roll week ending March 29.
The employees are paid on an hourly basis, and individual production records
are not maintained by the respondent. The decision as to whether or not an,
employee's production under a standard set for the respondent's plant entitled
her to an increase was solely Mack's responsibility. As of the date of the hearing,
neither Dumun nor Ortolano, who each were paid $.45 per hour prior to the
increase, had received an increase to $ 50 per hour.
The undersigned is convinced and finds that the respondent by not granting
increases to $ 50 per hour to Dumon and Ortolano prior to the hearing did not
discriminate against them by reason of their membership in or activities on
behalf of the Union. Although the evidence shows that the standard was not
maintained in the stream line or commercial line, in which both Ortolano and
Dumon worked as bar tackers, it is Mack's, uncontradicted testimony that Orto-
lano and Dumon were behind the line's production and that as a consequence the
work piled up in front of their machines. Dumon and Ortolano were the only bar
tackers in this line. It is undisputed that Mack questioned Ortolano in an effort
to discover who was responsible for the bottleneck and that Ortolano did not give
her any information that would aid her in arriving at a decision as to increases.
Since she could not obtain the necessary information from Ortolano, her only
alternative was to constantly observe the work of the two employees, which obser-
vation the respondent contends was going on at the time of the hearing.
The Board contends, in effect, that significance slibuld be attached to the fact
that Dumon was changed to bar tacking at about the time the first increases took
place. In this connection, the Board proved that Dumon kept up with the line
while operating the three machines to which she had been assigned previously.
However, Mack testified, in substance, and without contradiction, that those three
machines were not part of the "stream line," in that the operations were per-
formed before the garments went into the stream line ; that the operations
could be performed at odd hours by extra employees such as herself ; and that
Dumon was transferred to bar tacking for the reason that it was difficult to em-
ploy regular operators with experience for the line. Moreover, it is undisputed
that four employees, other than Dumon and Ortolano, also did not receive in-
creases as of the time of the hearing. At least two of these employees were not
members of the Union.
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
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 unfair labor prac-
tices, it will be recommended that he cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAw
N
1. International Ladies Garment Workers Union, affiliated with American
Federation of Labor, is a labor organization within the meaning of - Section 2 (5)
of the Act. '
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. 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.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
4. The respondent , by discharging Clemence Solares on February 4, 1944,
by the lay-off of Lena LaVite on March 13, 1944, and by failing to increase the
wage rates of Rosalie , Dumun and Marguerite Ortolano on or about March 23, 1944,
did not violate Section '8 (3) of - the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Julius Cohn , doing business as Comas Mann-
facturing Company, his officers, , agents , successors and assigns , shall:
1. Cease and desist from :
(a) Interfering with, restraining , or coercing his employees in the exercise
of the rights to self-organization , to form labor organizations , to join or assist
International Ladies Garment Workers Union or any other organization, 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 and 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) Post immediately in conspicuous places at this plant at New Orleans,
Louisiana , and keep posted for at least sixty ( 60) consecutive days from the
date of posting , notices to his employees stating that the respondent will not
engage in the conduct from which it is recommended that he cease and desist
in paragraph 1 (a) of these recommendations :
(b), File with the Regional Director for the Fifteegth,Region, on or before
ten (10 ) days from the receipt of this Intermediate Report, a report in writing
setting forth in detail the manner and form in which the respondent has com-
plied with the foregoing recommendations.
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent violated Section 8 ( 3) of the Act.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended ,' effective November 26,
1943, any party or counsel for the Board 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,
Roc(iambeau Building,rWashington , 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 . Immediately upon the filing of such state-
ment of exceptions and/or brief , the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director . As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing within ten (10 ) days from the date of the
order transferring the case to the Board.
JOHN H. LADE,
Ti (al Eraniinei.
Dated July 15, 1944.