Friedman-Harry Marks Clothing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1936

1 N.L.R.B. 432 (N.L.R.B. 1936)

In the Matter of FRIEDMAN-HARRY MARKS CLOTHING COMPANY, INC.
and AMALGAMATED CLOTHING WORKERS OF AMERICA '
Case No. C-50.-Decided March 28, 1936
Men's Clothing Industry-Interference, Restraint or Coercion: engendering
fear of loss of employment for union membership and activity ; expressed
opposition to labor organization , threats of retaliatory action; bribing union
members; surveillance over union meetings and activities ; propaganda against
union ; circulation of anti-union petition among employees ; threat to move
plant-Discrimination: discharge; non-reinstatement following temporary lay-
off-Reinstatement ordered-Back Pay: awarded.
Mr. Gerhard P. Van Arkel and Mr. A. L. Wirin for the Board.
Weinberg c Sweeten, by Mr. Leonard Weinberg and Mr. Harry J.
Green, of Baltimore, Md., for respondent.
Mr. John Hirschberg of Richmond, Va., and Mr. H. Blumberg, of
New York City, for the Union.
Mr. Stanley S. Surrey, of counsel to the Board.
DECISION
STATEMENT OF CASE
On November 11, 1935 the Amalgamated Clothing Workers of
America filed with the Regional Director for the Fifth Region a
charge that the Friedman-Harry Marks Clothing Company, Inc.,
Richmond, Virginia, had engaged in and was engaging in unfair
labor practices contrary to the National Labor Relations Act, ap-'
proved July 5, 1935, hereinafter referred to as the Act. On Novem-
ber 15, 1935 the Board issued a complaint against the Friedman-
Harry Marks Clothing Company, Inc., hereinafter referred to as
the respondent, said complaint being signed by the Regional Director
for the Fifth Region, and alleging that the respondent had com-
mitted unfair labor practices affecting commerce within the meaning
of Section 8, subdivisions (1) and (3) and Section 2, subdivisions
(6) and (7) of the Act. In respect to the unfair labor practices,
the complaint alleged in substance that the respondent, by its officers
and agents, terminated the employment of certain named employees,
all of said acts occurring on various days on and after September
27, 1935, for the reason that each of said employees had joined and
assisted a labor organization known as the Amalgamated Clothing
432
DECISIONS AND ORDERS 433
Workers of America, said acts being contrary to Section 8, subdivi-
sions (1) and (3) of the Act.
The complaint and accompanying notice of hearing were served on
the parties in accordance with Article V of National Labor Relations
Board Rules and Regulations-Series 1. The respondent, appearing
specially, objected to the jurisdiction of the Board on stated con-
stitutional grounds. Without waiving its rights,under that special
appearance, the respondent filed an answer to the complaint in which
it admitted the discharges but denied the allegations of violations
and moved to dismiss the complaint. On December 5, 1935 a hearing
was held at Richmond, Virginia by Henry G. Perring, the Trial
Examiner designated by the Board, and: evidence was taken. Full
opportunity to be heard, to examine and cross-examine witnesses
and to introduce evidence bearing upon the issues was afforded to all
parties. Counsel for the Board introduced all of the evidence pre-
sented by the Board, consisting entirely of written stipulations and
affidavits, in the prior case involving this concern (Case, No. C-40).
The respondent did not object to the introduction of such affidavits
on the ground that it was deprived of the opportunity to cross-
examine the affiants but solely on the ground of their irrelevance and
incompetency. The respondent did not present any evidence, oral
or written, on its behalf nor did it cross-examine any of the witnesses
who testified orally for the Board. The Trial Examiner denied the
motion to dismiss the complaint. The Board affirms this ruling.
Thereafter the Trial Examiner duly filed his Intermediate Report
with the Regional Director. In said Report the Trial Examiner
ruled that the evidence submitted by the Board was admissible and
consequently overruled the various objections of the respondent. The
Board affirms these rulings. He found that the respondent by dis-
charging Annie Mae Rogers, Maggie High, Robert L. Morgan, Isaac
Kenny, J. Wesley Owen, Albert J. Rogers, Annie Garnett, Beatrice
Garnett, Madelyn Clarke, Doris Koch, and Sylvia Johnson, said
discharges being made for the reason that each employee had joined
and assisted a labor organization known as the Amalgamated Cloth-
ing Workers of America, hereinafter referred to as the union, has
engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8, subdivisions (1) and (3)
and Section 2, subdivisions (6) and (7) of the Act. No evidence
having been introduced with respect to the cases of Edna Hicks,
Reba Holder,' and Mrs. Lillian Tunstall, the Trial Examiner dis-
missed the allegations in the complaint concerning these employees.
The Trial Examiner recommended that the respondent cease and
' This employee is involved in the first case concerning this respondent ( Case No.
C-40).
434 NATIONAL LABOR RELATIONS BOARD
desist from its unfair labor practices and, in. addition, offer rein-
statement to the discharged employees and pay to said employees
respectively a sum of money equal to the wages lost to them by
virtue of the discharges. The respondent has not complied with
these recommendations.
On March 28, 1936 we made our findings of fact and decision in
the first case involving this respondent. See In the Matter of Fried-
man-Harry Marks Clothing Company, Inc., Case No. C-40. Since
all of the evidence in that case has been introduced into this case,
most of the findings of fact there made are here applicable. We
therefore incorporate in this decision, similarly numbered, Findings
1 through 32 and Findings 36 and 37 of the prior case.
Upon the entire record in the case, including the pleadings, the
stenographic transcript of the hearing, and the documentary and
other evidence received at the hearing, the Board makes the
following :
FINDINGS OF FACT
1. THE MEN'S CLOTHING INDUSTRY
1. The men's clothing industry is among the twenty most impor-
tant manufacturing industries in this country. It ranked in 1929,
according to the U. S. Census of Manufactures, sixteenth in the
number of wage earners employed, nineteenth in the value of its
product and sixteenth in the amount of wages paid. In 1935 2 there
were more than 3,000 firms in the industry which employed approx-
imately 150,000 workers in the manufacture of men's clothing. In
addition to these workers, there are about 58,000 engaged in the
manufacture of the fabrics from which the clothing is made and
about 100,000 who are engaged in the wholesale and retail distribu-
tion of the manufactured men's clothing. The total value of sales
in 1929 by the manufacturing plants in the industry was $833,242,000.
2. The various steps in the typical process of manufacturing men's
clothing are as follows :
(a) The purchase, generally by- specifications, of the raw mate-
rials-mainly woolen and worsted cloth, cotton and rayon, canvas,
Silesia, felt, hair-cloth, sewing materials and buttons;
(b) The, sponging and shrinking of the cloth, after an examina-
tion to determine the proper method of so treating it;
(c) The cutting of the cloth, linings, canvas and other materials
according to schedules prepared on the bases of sizes, models and
customer ;
2 Unless the text indicates the contrary , the statistical statements in the findings of
fact are based upon 1935 figures.
DECISIONS AND ORDERS 435
(d) The fabrication into separate garments, such as coats, pants
and vests, of the cut materials through many sewing, basting and
pressing operations ;
(e) The assembly of these separate garments into completed suits,
grouped according to customers' orders and, in some cases, having
sewn on them the customer's label;
(f) The distribution of the garments to the manufacturers' cus-
tomers, generally retailers; alteration of the garment by the retailer
to fit it to the wearer and correction by the manufacturer of defects
in returned garments.
3. Woolen and worsted cloth represent about 75 per cent of the
total cost of raw materials. Much of the raw wool is imported from
foreign countries. The production of the domestic raw wool is con-
centrated in the Western States, over 70 per cent having been pro-
duced in that area in 1933. Texas, Montana, Wyoming, and Cali-
fornia constitute the chief wool-producing States. But while the
raw wool is thus produced mainly in the West, the manufacture of
that wool into woolen and worsted cloth, known as men 's wear fab-
rics, takes place largely in the Nev England States, so that there is
a constant flow of raw wool across the country to the mills in New
England. These mills in 1929 produced over 63 per cent of the total
of men's wear fabrics. Such fabrics constitute the largest single item
as respects both quantity and value of the product of the wool textile
industry.
4. The bulk of the rayon fabrics used for linings is produced in
New Jersey and Pennsylvania, whose combined production in 1929
exceeded 50 per cent of the United States total. In all, only four-
teen States produce rayon fabrics. As these fourteen States are not
similarly prominent in the list of States producing men's clothing,
it is clear that there must be an extensive flow of this raw material in
interstate commerce. For example, sixteen States and the District
of Columbia, which accounted in 1934 for over 25 per cent of the
garments cut, produced no rayon fabrics in 1929, while New York
which cut more than 46 per cent of the total of men's clothing cut
in 1934, produced only 3.7 per cent of the total of rayon fabrics.
5. As in the case of the wool and rayon fabrics, the areas of
production of the other materials, such as cotton fabrics, Silesia for
pockets, felt, hair-cloth, jute and hemp fabrics, bear no direct rela-
tion to the areas of production of men's clothing, so that a large
amount of these materials must be transported to the latter areas.
6. Most of the sponging and shrinking, which is necessary to con-
dition the fabrics for cutting, is performed in New York and Phila-
delphia for those firms which do not operate their own sponging
plants. The cloth is generally shipped, after its purchase by the
436 NATIONAL 'LABOR RELATIONS BOARD
men's clothing manufacturer, from the mill to the sponging plant
and then reshipped to the manufacturer.
7. The principal operations after shrinking and sponging are cut=
ting, sewing and pressing. All of these operations may be performed
in one plant, but very frequently they are performed separately in
plants located in different States. The term "inside manufacturer"
is applied to establishments in which the entire manufacturing
process is carried out in one place. The "contract manufacturer",
on the other hand, purchases the cloth and, after sponging, cuts
it in his plant but has the sewing and pressing performed by con-
tractors to whom the cloth is let out on a piece rate basis. For the
New York area, about .75 per cent of the goods cut are sent out to
contract shops to be sewn.
- Fifty per cent of the 3,225 establishments engaged in the fabrication
of men's clothing'are located in New York State; 95 per cent are
located in eight States-New York (50.2 per cent) ; Pennsylvania
(10.4 per cent) ; Maryland (10.2 per cent) ; New Jersey (5.9 per
cent) ; Illinois (8.3 per cent) ; Massachusetts (3.6 per cent) ; Cal-
ifornia (3.3 per cent) ; and Ohio (3 per cent). Since the men's
wear fabrics are produced largely in the New England States, the
goods' must be transported from the mills across state lines to the
fabricating establishments in the States listed above. Sixty-five per
cent of the total of suitings and pantings fabrics for men's wear
produced in 1929-$175,379,000 in value-was produced in five New
England States, Massachusetts, Rhode Island, Connecticut, Maine
and Vermont. In these same five States, 74 per cent of the over-
coatings fabrics, or $23,371,000 in value, was produced. While the
combined total of men's wear fabrics produced in these States was
thus about $200,000,000, the value of men's clothing manufactured
from these fabrics in the same `States was only $35,000,000. It is
thus apparent that the great bulk of the fabrics are shipped to
manufacturing establishments in other States.
In respect to the cutting of the cloth, about 46 per cent is per-
formed in New York; 11.72 per cent in Pennsylvania; 11.17 per cent
in Ohio; 9.12 per cent in Illinois; 7.20 per cent in Maryland; 4.07
per cent in Massachusetts; and the balance in other States (based
upon 1934 figures). In 22 States, no cutting is performed. But
while the three States of New York, Ohio and Massachusetts in 1934
cut 61.57 per cent of the total number of garments cut, only 44.81
per cent of the man-hours worked in the men's clothing industry
were worked in these States. Conversely, although only 28.74 per
cent of the garments were cut in Maryland, Illinois, New Jersey
and Pennsylvania, 41.98 per cent of the man-hours were worked in
these States. These comparisons indicate the extent to which the
DECISIONS AND ORDERS 437
cloth and garments are transported among the States in the process
of manufacture.
8. The processes in many of the clothing factories are assembly op-
erations. Many firms, for example, do not make shoulder pads for
coats in their own factories but buy them from firms specializing in
this part of the garment, in many cases causing the pads to be trans-
ported from other States. The same is true of the canvases used in
the coats. Finally, certain parts of the suit, as the pants or coat and
vest, may be manufactured in one State and the other parts else-
where, so that the separate garments must be transported from the
various manufacturing plants to a central place for assembly into
suits before delivery to the retailer or other purchaser.
9. Thousands of clothing workers are employed in the retail stores
in the task of making the alterations on the suits necessary to fit
them to the particular customer. The manufacturing operations do
not really end until after the suit is fitted to the customer and all
alterations completed.
10. It is obvious that the market, for men's clothing is a national
one. Since most of the clothing is produced iii a few States-over
90 per cent in seven States-but is used in every State, the sale and
distribution of the clothing involves transportation and commerce
among the States. In 1929 in the seven States which produced 90 per
cent of the total-New York (46.33 per cent) ; Pennsylvania (11.72
per cent) ; Ohio (11.17 per cent) ; Illinois (9.12 per cent) ; Maryland
(7.20 per cent) ; Massachusetts (4.07 per cent) ; New Jersey (.70 per
cent), only 48 per cent of the total sales were made-New York (16.7
per cent) ; Pennsylvania (8.1 per cent) ; Ohio (5.9 per cent) ; Illinois
(8.7 per cent) ; Maryland (1.3 per cent) ; Massachusetts (4.1 per.
cent) ; New Jersey (3.2 per cent). In 21 States no men's clothing
was produced at all , but these same States accounted for 12 per cent
of the total clothing sold.
11. The manufactured clothing is marketed in a variety of ways.
The bulk of the clothing is sold by manufacturers to retailers located
in every State. Sales to retailers in 1929 amounted to 63 per cent
of the total measured by value. These retailers consist of men's and
boys' clothing stores, furnishing stores, family clothing stores, de-
partment stores, general stores and dry goods stores. More than
half of the total retail sales were made by the men's and boys' clothing
and furnishing stores. Recently, the chain store method of distribu-
tion has become important and in 1929 there were 286 men's wear
chains operating 3,054 stores. Nine of the 85 of these chains which
sold only men's clothing were national in scope and sold 25 per cent
of the men's and boys' clothing sold in the type of store described
as "men's clothing stores". In addition, some manufacturers now
438 NATIONAL LABOR RELATIONS BOARD
own and operate retail outlets located in many States. In 1929 dis-
tribution through the manufacturers' own retail outlets amounted
to 8.3 per cent of the total sold. This method of distribution is in-
creasing. Only 14 per cent of the product was disposed of to inde-
pendent wholesalers and 6 per cent to wholesale branches owned by
the manufacturers.
12. About 5.9 per cent of the men's clothing produced in 1929 was
sold direct to household consumers by means of house-to-house can-
vassing. About 299 plants distributed their product in this manner.
The canvasser has samples of material from which the customer
makes his selection. His measurements are,taken, the garment is
manufactured pursuant to the order and shipped direct to the
customer.
13. Sales to retailers are made through two main methods-sending
salesmen out to travel from state to state and maintaining show
rooms in New York City and other cities, which are visited by buy-
ers from stores throughout the country. The New York market is
the largest in the country for the sale of men's clothing. The Daily
News Record, a trade journal, and the New York Times list daily
the arrival of buyers of men's clothing. These buyers visit the show
rooms of the manufacturers and make their selections from samples
on hand. Many buyers maintain headquarters in New York and are
visited there by salesmen for the manufacturers. The two directories
of the men's wear industry, The American Clothier and Fairchild's
Men's Wear, list sales offices and buying offices. Show rooms are
maintained in other cities, including Chicago and Los Angeles.
The salesmen on the road establish in some large cities temporary
show rooms where their samples may be inspected by the buyers of
the stores in that area. Their main trips are at specified times dur-
ing the year in advance of the Fall and Spring retail selling seasons.
14. National advertising of their product is utilized by many of
the manufacturers. In addition to advertising in the trade journals,
such as the Daily News Record, The American Clothier and Fair-
child's Men's Wear, they advertise in magazines of national circula-
tion. Moreover, by means of trade marks and trade names they are
able to advertise nationally by using prominent newspapers in the
various cities. Such advertising greatly assists the salesmen by
creating a familiarity with the product and a demand for it. Eleven
firms spent more than a half million dollars in magazine advertising
in 1929.
15. The men's clothing industry is thus an industry which is nearly
entirely dependent in its operations upon purchases and sales in
interstate commerce and upon interstate transportation. There is a
constant flow of raw wool from the Western States and foreign coun-
DECISIONS AND ORDERS 439
tries to the mills of New England where it is transformed into men's
wear fabrics , thence to the sponging and shrinking plants of New
York and Philadelphia , then, joined by the other necessary raw mate-
rials, to the fabricating factories of the Middle Atlantic States for
manufacture into clothing . This last operation involves a large
amount of movement of the cloth and manufactured garments from
state to state until final assembly of the finished product. Finally,
in the main by way of retail stores, the garments are distributed to
customers located in every State . No clothing manufacturing con-
cern could exist without this dependence upon interstate commerce.
The industry itself has no doubt as to its status , for the Executive
Director of the New York Clothing Manufacturers Exchange, Inc.,
which represents about 250 manufacturers doing 70 per cent of the
total business in the New York market, stated in his affidavit that
the industry is conducted as an interstate business and is entirely
dependent upon interstate commerce.
16. As can be gathered from the above , the manufacturing plants
are concentrated in certain areas. In recent years there has been a
tendency , however, for clothing manufacturers to migrate to other
areas. Migration is aided considerably by the mobile character of the
industry. The amount invested in fixed capital is relatively small
compared with other industries . Heavy machinery or special build-
ings are not required and dismantling of machinery and installation
elsewhere does not involve large expenditures . A large proportion
of the capital is invested in garments rather than in buildings and
machinery . Moreover , transportation costs are low in proportion
to the value of the product . For this reason the industry is carried
on without regard to the sources of raw materials or the areas of
consumption and involves an extensive use of transportation facilities
even during the process of manufacture.
The chief incentive to this migration is the search for lower labor
costs. The industry is highly competitive-no single concern does
more than 3 per cent of the total business . While the largest manu-
facturer employs about 3,500 people , the fiftieth largest employs only
360. The average for about 3,000 of the total number of establish-
ments is less than 35 employees per establishment . In view of the
competitive aspect, reduction in labor costs is significant as those
costs are the most important item next to that of the raw materials.
The labor costs are from 20 to 28 per cent of the value of the manu-
factured product; they are more than 40 per cent of the value added
by the manufacturer and are about 75 per cent of the purely manu-
facturing cost. Moreover, they are the most flexible item in the total
costs. While the cost of raw materials is about 50 per cent of the
total , the prices of the principal materials are standardized and do
97571-36-vOI' i-29
440 NATIONAL LABOR RELATIONS BOARD
not vary greatly from manufacturer to manufacturer. Moreover,
since labor costs amount to several dollars on the average suit while
transportation costs are only a matter of cents, the search for lower
labor costs may be carried on without any regard for the sources of
raw materials or the markets for the final product. The migration
has thus not been toward such points but toward the lower wage
centers.
The shift to low wage areas has been marked. Employment has
decreased in those areas where wages have remained stable but in-
creased in places where the wages were lower or less stable. From
1923 to 1929 employment in the industry increased about 20 per cent
in cities in which wage earners received less than the average wage,
whereas in those cities in which more than the average was paid there
were large decreases in employment-38.3 per cent for Chicago, 24.3
per cent for New York, 18.2 per cent for Boston.
II. THE AMALGAMATED CLOTHING WORKERS OF AMERICA
17. The Amalgamated Clothing Workers of America is a labor
organization composed of over 125,000 men and women employed in
the men's and boys' clothing industry. These members are organized
in local unions throughout the United States and Canada. In im-
portant industrial centers where there is more than one local, the
locals are organized into "joint boards". All locals and other sub-
divisions are governed by their own by-laws, elect their own officers
and manage their own affairs, subject to the general jurisdiction of
the national organization which is exercised through a General Presi-
dent, General Secretary-Treasurer and a General Executive Board.
The supreme authority of the union is vested in the biennial conven-
tion to which delegates are elected by all the local unions on the
basis of membership. The Amalgamated Clothing Workers has been
the representative of workers in the men's clothing industry for over
twenty years.
18. The men's clothing industry has long faced and still copes with
the problem of the sweat-shop. The units in the industry are rela-
tively small. The reasons for the predominance of medium size and
small size factories are, in part, absence of large overhead expenses,
small initial capital investment, absence of expensive patents, and the
seasonal nature of the industry, which permits a closing of the
factory during part of the year. The prevalence of these small estab-
lishments led to sweat-shops and all the ills that flow therefrom-low
wages, shocking and inhumane working conditions, child labor, home
work, unfair competitive advantages to the employers who ran the
sweat-shops and resulting competitive effect upon firms attempting to
maintain decent standards, unrest and bitterness on the part of the
O
DECISIONS AND ORDERS 441
employees. Of late, moreover, there has been a tendency to maintain
sweat-shop conditions in large factories by locating these factories in
rural areas and small cities and exploiting the unorganized workers
in those places. Out of such conditions grew the Amalgamated
Clothing Workers and its history has been a constant attempt
through the medium of collective bargaining to eliminate the sweat-
shop and to improve working conditions for the benefit of both manu-
facturer and employee. Its collective agreements with employers
provide for the elimination of home work and child labor and 'for
the maintenance of sanitary working conditions. These collective
agreements have also meant shorter hours and higher wages to the
workers in addition to better working conditions. In 1934, of the
ten firms paying the lowest hourly wages, all were non-union firms,
whereas all but one of the ten firms paying the highest wages had
agreements with the Amalgamated. The average wage of the first
ten firms was 46.25 cents an hour, that of the second ten 79.60 cents
an hour.
19. The period before the recognition by the employers of the
Amalgamated was marked by long and bitter strikes. In 1921 there
had been a general strike in New York City which had lasted for
eight months and caused losses of millions of dollars to employers
and employees. A similar general strike in New York in 1924 lasted
for six weeks and involved all of the 500 firms in that area and their
35,000 workers. The wage loss to the workers was nearly $6,000,000,
the financial loss to the manufacturers ran into the millions. In 1910
a strike occurred in the factories of the largest manufacturer of men's
clothing in the country, Hart, Schaffner and Marx in Chicago, which
employed 6,000 workers, and spread to other plants in the same area.
Similar large strikes occurred in Rochester and Chicago at later
periods. Smaller strikes and lockouts were frequent.
This costly industrial strife resulted finally in recognition of the
Amalgamated by the employers. In 1910 the Hart, Schaffner and
Marx firm entered into a collective agreement with its workers, who
became members of the Amalgamated upon its organization, and has
continued such relations ever since that time. Most of the other
Chicago manufacturers made similar agreements in 1919. The New
York strike of 1924 was ended by the establishment of a collective
agreement between the leading manufacturers and the Amalgamated
which was soon joined in by other manufacturers in that area. Fac-
tories in Rochester, Baltimore, Boston, Cincinnati, Cleveland, St.
Louis and Philadelphia recognized the union and entered into agree-
ments with it. Today the Amalgamated has collective agreements
with clothing manufacturers and contractors employing the greater
number of the clothing workers in the United States.
442 NATIONAL LABOR RELATIONS BOARD
These collective agreements have brought peace to that portion
of the industry that has entered such agreements. Since the signing
of the agreement in New York, there has not been a strike or lockout
involving signatories to the agreement, who account for about 70
per cent of the clothing manufactured in that area. Since 1919, when
the first collective agreement was made there have been no strikes or
lockouts in Rochester. The union has attempted to avoid strikes
whenever possible and its industrial policy calls for the use of the
strike only as a last resort, since it realizes the terrific cost to the
employee, the employer and the public. The collective agreements
provide for adjustment of grievances by negotiation between the
union representatives and the employers' representatives. As most
of the employers in the major centers are organized into associa-
tions so as to obtain the benefits of collective bargaining on the em-
ployers' side, the process of negotiation is simplified. The repre-
sentatives on both sides are well versed in all aspects of the industry.
Disputes which cannot be resolved in this manner are referred to
arbitration before the impartial machinery established for that pur-
pose by the collective agreement. Through the medium of the various
decisions of the Impartial Chairmen who have functioned in the role
of arbitrators there has been evolved a "common law" for this in-
dustry. The Impartial Chairmen, many of whom are well-known
public figures,3 testified in their affidavits to the stabilization and
peace effected by this collective bargaining and settlement of disputes.
Since the signing of the collective agreement for the New York
area, the New York Clothing Manufacturers Exchange, Inc. and the
Amalgamated have handled jointly a total of 21,193 complaints and
disputes. In only 898 of these cases, or slightly over 4 per cent, was
a resort to arbitration required because of inability to agree. Of
these 898, 30 per cent were settled by the Impartial Chairman acting
as a mediator; in the remainder he sat as an arbitrator and rendered
a decision. In only seven cases has there been willful non-compliance
with decisions of the Impartial Chairman and in only two of these
seven was it necessary to resort to the courts. In Rochester, since
1928, 395 out of a total of 1,337 cases have been referred to the Im-
partial Chairman for his decision; the rest have been adjusted by
agreement between the representatives of the employers and em-
ployees.
3 The following testified in this case . Dr William Al . Leiserson , now Chairman of the
National Mediation Board and formerly an Impartial Chairman in Rochester , New York
and Chicago , Dr. Henry Moskowitz , now Impartial Chairman in New York , Professor
Harry A. Millis , a member of the former National Labor Relations Board and formerly
an Impartial Chairman in Chicago, and Dr. Benjamin M. Squires , formerly Impartial
Chairman in Chicago . Other well known men who have acted as Impartial Chairmen
are Professor Felix Frankfurter , Professor William Z . Ripley , Professor David Friday,
Professor James H. Tufts, Clarence Darrow, Dr . J. L Magnes , Professor Frank J. Goodnow
and Judge Jacob Moses.
0
DECISIONS AND ORDERS 443
20. The Amalgamated has also striven constantly to improve the
general economic and social condition of its members. It has evolved
a system of unemployment insurance based mainly upon contributions
by employers. During the depression it has raised by assessments
considerable funds for the relief of unemployed clothing workers.
In order to enable the clothing workers to obtain credit and to main-
tain small saving accounts, it has established banks in New York
and Chicago, credit unions and cooperative investment services. It
has promoted a number of cooperative apartment houses in New
York City, which accommodate over 4,000 people at low rentals.
Beside affording comfortable living quarters, these houses furnish
cooperative social and educational centers.
21. The Amalgamated has also cooperated with employers in at-
tempts to improve their business. Processes have been analyzed and
rates established in individual shops that enable a given firm to
produce a garment which it could market on an equal basis with its
competitors. The union has aided in the elimination of overhead
expenses by assisting in the consolidation of shops and sections and
by assuming responsibility for quality, thereby permitting a sharp
reduction in the amount of supervision necessary. Wage rates have
been reduced where- employees' earnings were excessive. The em-
ployers have benefited from the improved morale of the workers.
Restrictive practices have been modified and sometimes eliminated
entirely when changes in manufacturing or distribution made such
restrictions oppressive. By attempting to maintain a fair scale of
minimum wages and maximum hours,-the Amalgamated has done
much to protect the manufacturer from the unfair competition of the
wage-cutter and the sweat-shop operator. Since wages and prices
in one market affect conditions in other markets, it acts as a stabiliz-
ing force in the industry by attempting to eliminate such unfair
competition while at the same time preventing dislocation of certain
markets by drastic demands on union manufacturers. When its
members have ceased work and created a stoppage contrary to a
collective agreement, the union has disciplined them and ordered
them to return to work.
22. The benefits that flow from recognition of the Amalgamated
and cooperation with it have been realized by those manufacturers
that have entered into agreements with the Amalgamated. The
President of the New York Clothing Manufacturers Exchange, Inc.,
which represents about 250 manufacturers doing about 70 per cent
of the total business in the New York market, has stated that the
"organization of collective bargaining machinery, the establishment
of an impartial tribunal, and the founding of unemployment in-
surance are the outstanding achievements" in the industry and that
444 NATIONAL LABOR RELATIONS BOARD
the Amalgamated Clothing Workers "has been perhaps the largest
single contributing factor to the lasting peace and harmony that have
characterized those clothing markets where the Amalgamated Cloth-
ing Workers of America was the other contracting party to the
collective agreement". Similarly, the President of the Clothiers'
Exchange of Rochester, New York, which includes 5 leading clothing
manufacturers employing 6,500 workers, stated that "once the
principle of collective bargaining is recognized and machinery is
set up for the adjustment and arbitration of disputes under an agree-
ment reached through collective bargaining, industrial peace may
replace industrial war". The labor manager of the New York
Clothing Manufacturers Exchange, Inc. testified to the effectiveness
of the machinery established to adjust disputes by negotiation and
arbitration rather than by strikes and lockouts.
III. THE FRIEDMAN -HARRY MARKS CLOTHING COMPANY, INC.
23. The respondent Friedman-Harry Marks Clothing Company,
Inc. is a Virginia corporation having its principal office and a plant
at Richmond, Virginia. At such plant it is engaged in the purchase
of raw materials and the manufacture, sale and distribution of men's
clothing.
24. The principal materials used by the respondent in the manu-
facture of men's clothing are woolen and worsted goods. Ninety nine
and fifty seven hundredths per cent of the woolen and worsted goods
so used by the respondent come from States other than the State of
Virginia. The selling offices of the manufacturers from whom such
materials are purchased are located in New York and 75 per cent of all
the woolen and worsted goods used by the respondent was purchased
in New York, the remainder being purchased at Richmond. The
material so purchased was fabricated in the following States : Massa-
chusetts (50 per cent) ; Connecticut (10 per cent) ; New York (8 per
cent) ; Rhode Island (8 per cent) ; New Jersey (5 per cent) ; Pennsyl-
vania (4 per cent) ; South Carolina (3 per cent) ; Illinois, Indiana
and Maine (12 per cent) ; Virginia (.43 per cent).
25. With respect to the other materials used by the respondent
in the manufacture of clothing, the cotton linings come from South
Carolina (40 per cent), Georgia (40 per cent), and North Carolina
(20 per cent), 95 per cent of the purchases of such linings being
made in New York and the remainder in Maryland ; rayon linings
come entirely from New York; all of the canvas used is bought in
and comes from Pennsylvania; all of the thread and other sewing
materials and the buttons come from and are bought in New York;
all of the shoulder pads are bought in and come from Maryland;
the hymo (a hair material used in stiffening lapels) comes from
DECISIONS AND ORDERS 445
Pennsylvania; the felt and under-collar cloth are purchased in
Virginia but come from New York; the silesia and wigan (cheap
cotton materials) are purchased in Virginia but come from South
Carolina; and the cotton tape is purchased in Virginia but comes
from Pennsylvania.
26. The respondent acquires title to the woolen and worsted cloth
at the point of shipment. Pursuant to its direction the cloth is
sent by truck and rail to a sponging firm in New York City for
shrinking. After this process is completed, the cloth is shipped
to the plant at Richmond by truck or rail.
27. The woolen and worsted cloth is manufactured into men's
clothing at its plant in Richmond, Virginia. The respondent has
no work performed for it by contractors nor does it do work for
other manufacturers. About 550 employees were employed by
respondent in 1932, 625 in 1933, 675 in 1934 and 800 in 1935.
28. Of the garments manufactured by the respondent, 82.8 per
cent are purchased by customers located outside of the State of
Virginia, as follows: Texas (10 per cent) ; North Carolina (10
per cent) ; New York (7 per cent) ; Illinois (7 per cent) ; Tennessee
.(5 per cent) ; Louisiana (5 per cent) ; Indiana, Kentucky, Alabama,
Georgia, Maryland, District of Columbia, South Carolina, Florida,
Ohio, Missouri, Michigan, Massachusetts, Rhode Island, Connecti-
cut and Pennsylvania. The customers are mainly department stores
and men's clothing stores in the larger cities throughout the country.
The respondent maintains a sales office and show room in New
York City, through which 15 to 20 per cent of the total sales are
made. Several officers of the company are usually resident in
New York City. It has eight persons engaged as traveling sales-
men, some being officers and members of the Board of Directors.
The orders are sent to the Richmond plant; the goods being sold
f. o. b. Richmond. They are shipped by railroad, truck, railway
express, water or Parcel Post pursuant to the customers' orders.
The respondent advertises in the Fairchild's Men's Wear Directory
and in the American Clothier. It has a registered trade marks
" Rockingham ", for use in commerce among the several States.
29. In 1932 the volume of business amounted to $800,000 and
80,000 units; in 1933 to $1,000,000 and 100,000 units; in 1934 to
$1,500,000 and 100,000 units; and for the first ten months of 1935,
to $1,750,000 and 150,000 units. This increase is in part due to
an investment of $50,000 in the company in 1931 by Louis M.
Friedman, formerly engaged in the men's clothing business in New
York City. The respondent is among the fifty largest firms in the
men's clothing industry and among the ten firms in that group
paying the lowest average wage.
446 NATIONAL LABOR RELATIONS BOARD
IV. THE UNFAIR LABOR PRACTICES
30. The employees of the respondent in the summer of 1935 had
formed a local of the Amalgamated Clothing Workers of America
and were soliciting membership therein. The management of the
respondent at once indicated hostility to the union organization of
its employees and declared that it would not permit them to join
the Amalgamated . Morton Marks, President of the respondent, at
various times verbally expressed his antagonism to the Amalgamated.
On June 28 , 1935, he told an employee that union employees would
not be permitted to work in the plant and that he was not going
to run a union shop. Another employee was told on the, same day
that the "union was the worst thing in the world". That same
month he stated to a group of female employees that "I will fire
every damn one that attends the union meeting". During the first
week of July, Keeve Marks, Secretary of the respondent , told an
employee that "If we hear of your going to those damn meetings,
you are going to get fired " and then suggested to him that he go
to the union meeting with a number of employees and "wreck the
damn place . Bang on the seats, boo them, stamp upon the floor."
Then came a note of caution : "You had better let me know who
is going, because if I notice any of you all over there that I do not
know are going, you are going to get fired and I don't mean maybe.
I don't mind your going if you go and then come back and tell me
exactly what they. are going to do. " In September, Morton Marks
,told some of the employees that "If the union gets the upper hand
of me, I will move my plant away from Richmond ", and added, "I'll
take anybody that does not belong to the union ." On June 28, he
discharged three employees , Farley Holder, Holder's sister Beulah
Ashworth and her husband , for attending a union meeting , inform-
ing them that he was making examples of them since they had all
been employed at the plant for a long time. At various times dur-
ing this period Marks often questioned the employees about their
relations with the union and made clear his enmity towards it.
31. The management of the respondent has maintained surveillance
over union meetings and activities . On June 27 , 1935, Morton Marks
and the superintendent of the respondent's plant secretly observed
a union meeting. On August 21, Marks again watched a union
meeting of the respondent 's employees . In September he told Kath-
erine Hutchinson , an employee , to attend union meetings and report
to him the names of those that attended, paying her $22.50 a week
for her services . The management appeared to be well -informed re-
garding the union activities of their employees.
32. On August 1 , 1935, a petition was circulated in the plant by
certain employees who requested the others to sign it . The petition
DECISIONS AND ORDERS 447
stated that the employees desired to express their loyalty to the firm
and their satisfaction with working conditions. Moreover, it stated
that they resented the activity of the union organizers and their at-
tempts to create dissension. While it is not clear whether the idea
of such a petition originated with the management or with the
employees, it is obvious that the management was informed of those
who refused to sign and that such refusal to sign was regarded as
signifying either union membership or approval of the union. In
some cases foremen attempted to obtain signatures. In one instance
the employee circulating the petition informed another employee who
was refusing to sign that the foreman said, "sign it or else"-the
employee then signed the petition.
33. The complaint alleges that the respondent terminated the em-
ployment of a number of named employees because of their union
membership and activity. Those cases as to which evidence was
given will now be considered in detail :
(a) Annie Mae Rogers. She had commenced her employment with
the respondent as an inspector in April, 1933 and was third in senior-
ity in the group of six inspectors. She joined the union on August
13, 1935 at a social party given by herself and her husband, Albert
J. Rogers, for some employees of the respondent and representatives
of the union. On September 27 she was "laid off" on the ground
that work was slack, although previously work had been shared un-
der such conditions. The following Monday, September 30, she ques-
tioned Morton Marks, President of the respondent, about the rea-
son for the "lay-off" and he finally said that it was "on account of
the union." He said he had been informed of the union meeting
at her house. A non-union employee was given her job and she
had not been recalled to work at the time of the hearing.
(b) Albert J. Rogers. He had been employed by the respondent
since July, 1935 as an under presser and was the junior in seniority
of the group of five on that operation. He had refused to sign the
August 1 petition. On August 13, 1935 he had joined the union,
with his wife as described in (a) above. On September 26 he was
permitted to leave the plant for the day because of illness. On
September 27 he and his wife were told that they were not needed
any more. On the same day J. Wesley Owen was also dismissed
(see (c) infra). He had not been recalled to work at the time of
the hearing.
(c) J. Wesley Owen. He had commenced his employment as an
under presser for the respondent in March, 1934. He was the oldest
in point of seniority of the five engaged in that operation. He did
not sign the August 1 petition. On August 10, 1935 he joined the
union and thereafter attended its meetings and solicited members.
On September 27, 1935 he was "laid off" for a day as work was slack.
448 NATIONAL LABOR RELATIONS BOARD
The foreman then sent word by his wife that he was not to return
until sent for by him. On Wednesday next, October 2, he returned
and asked the foreman why he, the oldest man on the job, was being
"laid off." The foreman told him that it was on account of some re-
mark about slack work. He had not been called back to work at the
time of the hearing. I
(d) Annie Garnett. She was second in seniority of a group of
twelve employed as trimmers in the pants department, having been
employed since September, 1931. On August 25, 1935 she joined the
union. On September 27 she was "laid off", no reason being given
for the action. The foreman sent her word to return next Wednes-
day and then again sent word by her daughter, Beatrice Garnett,
not to return until the second Wednesday. On that day he told her
she would be notified when there was work for her. She had not
been notified at the time of the hearing.
(e) Beatrice Garnett. She had been employed by the respondent
since May, 1935, serging backs in the pants department and was third
in seniority of the five on that operation. She joined the union on
August 26, 1935. On September 27, the same day on which her
mother was "laid off", she likewise was "laid off" by her foreman,
who told her to return in a week. At that time, he told her that she
would be called when there was work for her. She had not been
recalled at the time of the hearing.
(f) Madelyn Clarke. She had commenced her employment with
the respondent, on February 16, 1932 and for most of the time was
employed running a button hole machine, being the junior on that
operation. On September 25, 1935• she joined the union. On Sep-
tember 27, 1935 she was "laid off" for a week. During that week
she met Morton Marks and was asked by him why she had joined
the union. She told him that she had not joined and he replied that
he was "glad." Subsequently her foreman stated she would be sent
for when needed, but she had not been notified to return at the time
of the hearing. The wife of one of the foreman has been working on
her machine.
(g) Sylvia Johnson. She had been employed by the respondent
at the task of stitching side pockets since January, 1935, and was
fourth in seniority of a group of seven. She joined the union on
August 24, 1935 and thereafter -attended its meetings. She was the
only union member of the group. On October 21 she was "laid off",
no reason being given. From the circumstances attending the termi-
nation of employment and later conversations with the management
it is clear that neither inefficiency nor a lack of work were involved
in the termination of employment. She had not been reinstated at
the time of the hearing.
DECISIONS AND ORDERS 449
(h) Maggie High. She had been employed since June, 1931 as a
button sewer and was the senior of the seven on that operation. She
did most of the special work and instructed new employees. She
joined the union in July, 1935 and was active in its affairs. Her
foreman, who was friendly to her, about the middle of August dis-
cussed her membership in the union and stated that some morning he
would have to come around, tear her work and then discharge her for
poor work. On October 25, 1935 she was discharged by her foreman.
The tenor of his conversation with her indicated that the discharge
was for union activity ; he said, "Mrs. High, it has come . . . I don't
need to go to a lot of explaining, you understand" and she replied,
"Yes, I do, but I haven't got anything to be sorry for and nothing to
regret." She had not been reinstated at the time of the hearing.
(i) Doris Koch. Finding. 33(i) of Case No. C-40, dealing with
the prior history of this employee, is here incorporated. A union
member whose job was raising pants pockets, she was discharged on
November 8, 1935 by the foreman who when asked by her for the
reason, said, "Well, you are just not satisfied with the job." Her
husband, also a union member, had been discharged previously (See
Finding 33 (b) in Case No. C-40). She had not been reinstated at
the time of the hearing.
(j) Robert L. Morgan. He had been employed by the respondent
since April, 1932 and was a body presser. He joined the union in
July, 1935 and was active in its affairs. He refused to sign the
August 1 petition. The next day Mr. November, the superintendent,
asked why he "wasn't satisfied". The assistant foreman on one occa-
sion had told him to "keep his nose clean and don't mess with the
union". On November 4, the superintendent told Morgan that he
was going to fire everybody that belonged to the union and asked him
where he stood. On November 8 he was discharged by the superin-
tendent, who informed him that the discharge was on account of his
membership in the union. He had not been recalled to work at the
time of the hearing.
(k) Isaac Kenny. On November 4, the superintendent told Mor-
gan, the employee referred to in (j) above, that he was going to fire
Kenny, another employee, because he was a member of the union.
Ten minutes later Kenny was discharged. He had not been reinstated
at the time of the hearing.
34. On November 18, 1935, the superintendent of the plant, Mr.
November, sent for nine or ten of the union members who had been
discharged. Of the employees mentioned in Finding 33 above,
Albert J. Rogers, Owen, Annie Garnett, Beatrice Garnett, Madelyn
Clarke, Sylvia Johnson and Doris Koch, attended this meeting. In
the presence of the entire group November questioned each in regard
450 NATIONAL LABOR RELATIONS BOARD
to the union, asking why they had joined and what they now thought
about the union. He informed them that "he wasn't going to have
any union in the factory". He then dismissed them, saying that he
would let them know when he wanted them. At the time of the hear-
ing none of those present had received any further word from the
respondent.
35. Considering the circumstances in each of the above cases in con-
nection with the undeniable and open antagonism of the respondent
toward the union, its attempts ruthlessly to stamp out the union's
existence at the plant, the conduct of the superintendent at the meet-
ing called by him on November 18, and the respondent's failure to of-
fer any explanation of such acts, we conclude that the employment of
each of the employees mentioned in Finding 33 above was terminated
as therein described because of their membership in the Amalgamated
Clothing Workers of America and their activities in connection with
that organization. It is significant that many of these discharges-
occurred on the same day and that in several cases an entire family
was affected. Moreover, the callousness of the respondent toward its
emloyees and its firm determination to defy the National Labor
Relations Act are indicated by the fact that several of the discharges
occurred after the issuance of a complaint against it by this Board
charging the company with engaging in unfair labor practices
through discriminatory discharges and lay-offs (see Case No. C-40).
36. Interference by employers in the men's clothing industry with
the activities of employees in joining and assisting labor organiza-
tions and their refusal to accept the procedure of collective bargain-
ing has led and tends to lead to strikes and other labor disputes that
burden and obstruct commerce and the free flow thereof. In those
cases where the employees have been permitted to' organize freely
and the employers have been willing to bargain collectively, strikes
and industrial unrest have gradually disappeared, as shown in Find-
ing 19. But where the employer has taken the contrary position,
strikes have ensued that have resulted in substantial or total cessa-
tion of production in the factories involved and obstruction to and
burden upon the flow of raw materials and finished garments in
interstate commerce.
37. The President of the respondent stated on September 26, 1935
that the labor difficulties in the plant had seriously curtailed their
production. The plant had produced 84,000 units in the spring and
would probably be able to produce only 60,000 in the fall of 1935.
One customer in a Western State had refused to give the respondent
an order of 30,000 units since he had heard a strike was impending
in the plant and he therefore could not be certain that the respondent
would be able to fill the order.
DECISIONS AND ORDERS 451
38. Since no evidence was introduced with respect to the cases of
Reba Holder, Edna Hicks and Lillian Tunstall, the Trial Examiner
rightly dismissed the allegations in the complaint regarding these
employees.
CONCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW
39. The Amalgamated Clothing Workers of America is a labor
organization within the meaning of Section 2, subdivision (5) of
the National Labor Relations Act.
40. By terminating the employment of Annie Mae Rogers, Albert
J. Rogers, J. Wesley Owen, Annie Garnett, Beatrice Garnett and
Madelyn Clarke on September 27, 1935, Sylvia Johnson on October
21, 1935, Maggie High on October 25, 1935, Isaac Kenny on November
4, 1935, Doris Koch and Robert L. Morgan on November 8, 1935, as
described in Findings 33, 34 and 35 above, and by each of said acts,
the respondent did discriminate in regard to tenure of employment
and has thereby discouraged membership in the labor organization
known as the Amalgamated Clothing Workers of America.
41. By the acts described in Findings 33, 34 and 35 above, and by
each of them, the respondent has interfered with, restrained and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the National Labor Relations Act.
42. The aforesaid acts of respondent occurred in the course and
conduct of commerce among the several States and immediately
affect employees engaged in the course and conduct of such
commerce.
43. The aforesaid acts of respondent have burdened and obstructed
the course and conduct of commerce among the several States and
lead and tend to lead to labor disputes burdening or obstructing
such commerce and the free flow thereof.
Upon the basis of the foregoing the Board finds and concludes as a
matter of law :
(a) Respondent, by discriminating in regard to the tenure of
employment of Annie Mae Rogers, Albert J. Rogers, J. Wesley Owen,
Annie Garnett, Beatrice Garnett, Madelyn Clarke, Sylvia Johnson,
Maggie High, Isaac Kenny, Doris Koch and Robert L. Morgan, and
by each of said acts, has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section 8, sub-
division (1) and Section 2, subdivisions (6) and (7) of the National
Labor Relations Act.
(b) Respondent, by discouraging membership in the labor organi-
zation known as the Amalgamated Clothing Workers of America by
discriminating in regard to the tenure of employment of Annie Mae
Rogers, Albert J. Rogers, J. Wesley Owen, Annie Garnett, Beatrice
452 NATIONAL LABOR RELATIONS BOARD
Garnett, Madelyn Clarke, Sylvia Johnson, Maggie High, Isaac
Kenny, Doris Koch and Robert L. Morgan, and each of them, has
engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8, subdivision (3) and Section 2,
subdivisions (6) and (7) of the National Labor Relations Act.
ORDER
On the basis of the findings of fact and conclusions of law and pur-
suant to Section 10, subdivision (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Friedman-Harry Marks Clothing Company, Inc., and
its officers and agents, shall:
1. Cease and desist (a) from discharging any of its employees or
otherwise discriminating in regard to the tenure and conditions of
their employment, and from threatening such action, for the reason
that such employees have joined or assisted the Amalgamated Cloth-
ing Workers of America or otherwise engaged in union activity ; and
(b) from in any manner interfering with restraining or coercing its
employees in the exercise of their rights to self-organization, to form,
join or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
-activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act;
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Annie Mae Rogers, Albert J. Rogers, J. Wesley Owen,
Annie Garnett, Beatrice Garnett, Madelyn Clarke, Sylvia Johnson,
Maggie High, Isaac Kenny, Doris Koch and Robert L. Morgan im-
mediate and full reinstatement, respectively, to their former posi-
tions, without prejudice to any rights and privileges previously
enjoyed;
(b) Make whole said Annie Mae Rogers, Albert J. Rogers, J.
Wesley Owen, Annie Garnett, Beatrice Garnett, Madelyn Clarke,
Sylvia Johnson, Maggie High, Isaac Kenny, Doris Koch and Robert
L. Morgan for the loss of pay they have suffered by reason of the
termination of their employment by payment, respectively, of a sum
of money equal to that which each would normally have earned as
wages during the period from the date of termination of employ-
ment, as stated in the findings of fact, to the date of such offer of
reinstatement, computed in this case by averaging the wages earned
during said period by the employees engaged in the same operations,
respectively, as were the above employees prior to the termination
of their employment;
DECISIONS AND ORDERS 453
(c) Post immediately notices to its employees in conspicuous places
stating (1) that the respondent will cease and desist as provided in
Paragraph One of this Order, and (2) that such notices will remain
posted for a period of at least thirty (30) consecutive days from the
date of posting. _
And it is further ordered,
3. That the complaint be, and hereby is, dismissed with respect
to the allegations of Paragraph 4 respecting Reba, Holder, Edna
Hicks and Lillian Tunstall.and so much of the allegations of Para-
graphs 5, 6, and 8 as 'depend upon the aforesaid allegations.