Louis Hornick & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1937

2 N.L.R.B. 983 (N.L.R.B. 1937)

In the Matter of Louis HORNICK & COMPANY, INC. and TEXTILE
TRIMMING WORKERS UNION, LOCAL 2440, UNITED TEXTILE WORKERS
OF AMERICA
Case No. C-111.Decided June 1., 1937
Curtain Manufacturing Industry-Interference, Restraint or Coercion:
attempts to persuade employees to resign from union ; expressed opposition to
union, threats of retaliatory action-Unit Appropriate for Collective Bar-
gaining: production employees-Representatives: proof of choice: membership
in union-Collective Bargaining: breach of collective agreement; employer's
duty as affected by strike; refusal to negotiate with representatives-Dis-
crimination: lockout-Strike: provoked by employer's lockout of union em-
ployees and refusal to bargain-Employee Status: during lockout; during
strike-Reinstatement Ordered, Strikers: strike provoked by employer's viola-
tions of Act ; displacement of employees hired during or following strike-
Reinstatement Ordered, Non-Strikers: employees locked out-Back Pay:
awarded.
Mr. David A. Moscovitz for the Board.
Mr. Samuel Tullman, of New York City, for respondent.
Mr. Sidney E. Cohn and Mr. Samuel Cohen, of New York City,
for the Union.
Mr. Howard Lichtenstein, of counsel to the Board.
DECISION
STATEMENT OF CASE
Upon charges duly filed by Textile Trimming Workers Union,
Local 2440, United Textile Workers of America, hereinafter called
the Union, the National Labor Relations Board, hereinafter called
the Board, by Elinore Morehouse Herrick, Regional Director for the
Second Region, issued and duly served its complaint dated April 6,
1936 , against Louis Hornick & Co., Inc., the respondent herein,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
Section 8, subdivisions (1), (3), and (5), and Section 2, subdivisions
(6) and (7) of the National Labor Relations Act (49 Stat. 449),
hereinafter referred to as the Act.
In respect to the unfair labor practices, the complaint, as amended,
in substance alleged :
1. That since November 1, 1935, the respondent has continuously
urged and warned its employees to refrain from remaining members
983
984 NATIONAL LABOR RELATIONS BOARD
of the Union, and has interfered with the activities of its employees
in connection therewith.
2. That on December 9, 1935, the respondent locked out 12 of its
knitters who are members of the Union, and refused to reinstate them
unless they would drop their membership therein.
3. That as a result of said interference and lockout by the respond-
ent, approximately 106 Union employees in the plant went out on
strike on December 10, 1935; that the strike still continues and the
respondent has at all times since December 10, 1935, refused and still
refuses to reinstate the employees so locked out.
4. That all of the production workers of the respondent excluding
those employees engaged in supervisory capacities constitute a unit
at the plant of the respondent appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act;
that on or before October 17, 1935, a majority of the employees in
said unit had designated the Union as their representative for the
purposes of collective bargaining with the respondent, and that at
all times since October 17, 1935, said Union has been the exclusive
representative for collective bargaining of all the employees of said
unit.
5. That on or about December- 10, 1935, the Union requested the
respondent to bargain collectively in respect to rates of pay, wages,
hours of employment, and other conditions of employment with the
Union as the exclusive representative of all the employees in-said
unit; that on said date and at all times thereafter the respondent
refused and has refused to so, bargain collectively.
6. That the aforesaid acts of the respondent constitute unfair labor
practices affecting commerce within the meaning of Section 8, sub-
divisions (1), (3), and (5), and Section 2, subdivisions (6) and (7)
of the Act.
On April 17, 1936, the respondent filed its answer to the complaint,
denying the allegations of unfair labor practices but admitting the
interstate character of its business, the appropriateness of the unit
for the purposes of collective bargaining, and the authority of the
Union as the exclusive representative of all the employees of said
unit for the purposes of collective bargaining. As a further defense,
it alleged the breach of an existing collective agreement between the
respondent and the Union as a result of the refusal of the Union to
furnish the respondent with workers as provided therein.
Pursuant to notice, Robert M. Gates, duly designated by the Board
as Trial Examiner, conducted a hearing commencing on April 16,
1936, in New York, N. Y. Full opportunity to be heard, to examine
and to cross-examine witnesses, and to introduce evidence bearing
upon the issues was afforded to all partied. The respondent also
filed a brief. At the close of the hearing the respondent made
DECISIONS AND ORDERS 985
various motions to dismiss the complaint , such motions being based
upon the constitutional invalidity of the Act , lack of jurisdiction,
insufficiency of the complaint , and failure of proof. The Trial Ex-
aminer reserved decision on these motions, later denying them in his
Intermediate Report.
On June 16 , 1936, the Trial Examiner filed his Intermediate
Report, finding and concluding , in substance, that the respondent
had engaged in unfair labor practices affecting commerce in violation
of Section 8, subdivisions ( 1), (3), and ( 5), and Section 2, subdi-
visions (6) and (7) of the Act. The Trial Examiner accordingly
recommended that the respondent bargain collectively with the Union
as the exclusive representative of all its production employees, dis-
charge all employees now employed , replace them with members of
the Union, and hire any additional employees which may be needed
through the Union. On June 24 , 1936, the respondent duly filed
exceptions to the Intermediate Report.
We find that the evidence in the record supports the Trial Exam-
iner's rulings, findings, and conclusions. We find nothing in the
respondent 's exceptions to the Intermediate Report which requires
any material alteration of such findings and conclusions . In sub-
stance, the material findings of fact and conclusions of law herein
made embody those made by the Trial Examiner.
Upon the entire record ' in the case , the Board makes the following :
FINDINGS OF FACT
I. THE RESPONDENT AND ITS BUSINESS
The respondent, Louis Hornick & ,Company, Inc., is a corporation
organized on December 27, 1927, under and by virtue of the laws of
the State of New York. It is a closed corporation of which Louis
Hornick is the president , and its office and place of business is located
at 22 West Twenty-first Street, New York, New York.
The respondent is engaged in the manufacture of curtains and
trimmings for lamp shades, dresses, millinery , and upholstery. It is
a member of the Passementerie and Trimming Manufacturers Asso-
ciation and is approximately the tenth largest of some 250 manu-
facturers engaged in this business in the State of New York. The
physical plant consisting of a shipping department and a production
department occupies two floors at the above mentioned address and
utilizes 53 knitting machines of various types . The industry is sea-
sonal, the season extending from August through December of each
year. On December 10, 1935, the time of the dispute, the respondent
employed 98 production employees , and during April , 1936, the time
of the hearing , approximately 25 persons . In 1935 monthly payrolls
varied from $4,841.95 in July to $13,048.35 in October.
986 NATIONAL LABOR RELATIONS BOARD
Seventy-five per cent of the materials used by the respondent con-
sist of cotton and rayon in the form of yarn, purchased from com-
mission agents in New York City and shipped almost entirely from
warehouses located in that city. The testimony indicates that 90
per cent of the cotton and rayon so purchased is shipped to New
York warehouses from mills located in the New England and South-
ern States. The remaining 25 per cent of the materials used by the
respondent consist of wire, moulds, hooks, and tinsel. In 1935, 78
per cent of the respondent's raw materials, amounting to $123,136.86,
were secured from factories and warehouses located within the State
of New York, whereas the remaining 22 per cent, amounting to $33,-
315.93, were shipped directly from the States of Georgia, Illinois,
New Jersey, Pennsylvania, and Connecticut. The greater portion of
material shipped to the respondent from within the State-cotton
and rayon ,yarn-was processed in and delivered from mills located
in other States to the commission merchants supplying the
respondent.
The respondent's customers are retailers, jobbers, wholesalers, de-
partment stores, and chain stores. It employs six salesmen who
solicit business throughout the entire United States. In 1935 the
respondent's gross sales amounted to $315,140.64, the greater percent-
age of sales being "on order". The respondent maintains little stock
on its shelves and manufactures to fill orders as they are received.
Hornick testified that from 65 to 70 per cent of the products manu-
factured in the plant, by dollar volume, are shipped to points outside
the State of New York. Most of the shipments are made by freight,
the products being transported to freight terminals in Hornick's
private automobile, although on occasion the services of a truck are
utilized. In addition some shipments are made by parcel post.
II. THE UNFAIR LABOR PRACTICES
The Textile Trimming Workers Union, Local 2440, a labor organi-
zation, was organized in March, 1932, and became affiliated with the
United Textile Workers of America in May, 1935. Since its organi-
zation in 1932 and to the 1934-1935 season, the Union has had closed
shop agreements covering hours, wages, and other conditions of em-
ployment, with the respondent and other members of the Passemen-
terie and Trimming Manufacturers Association.' At the time of the
hearing Union officials testified that 28 manufacturers comprising
50 per cent of all the manufacturers in New York City engaged in
the manufacture of products the same or similar to those manufac-
1 Although the testimony is not clear, it would appear that prior to the 1934-1935
season, these agreements were signed by the Association on behalf of its members ;
thereafter , the agreements were signed directly by the members.
DECISIONS AND ORDERS 987
tured by the respondent were then operating under such agreements
with the Union. In August, 1934, the first written agreement be-
tween the Union and the respondent was executed which expired on
August 30, 1935. The last agreement between the respondent and
the Union was signed on October 17, 1935. Shortly before the ex-
piration of the previous agreement Hornick left on his vacation. Al-
though no formal arrangement was made at that time, it was under-
stood between Hornick and David Rosen, shop chairman for the
Union in the respondent's plant, that the terms of the old agreement
would continue until Hornick returned and an agreement for the
ensuing year signed. The record indicates that the agreement for
the year 1935-1936 is the same as the agreement in force during the
previous year, including the amendments made with pen and ink.
The agreement between the respondent and the Union is a mimeo-
graphed form contract and, among other things, provides that the
respondent shall employ only members of the Union for productive
work, that such employees shall be hired through the Union, and
that the Union shall supply competent help for all operations of
the respondent. It further provides that wage rates and other work-
ing conditions may be revised during the life of the agreement, and
that all disputes and grievances shall be settled by representatives
of the Union and the Passementerie and Trimming Manufacturers
Association.
Pursuant to the agreement and according to the custom of the
business, work during the slack season is divided among the produc-
tion employees by the shop chairman and shop committee, the em-
ployer having no choice regarding the individuals who actually work.
It is customary for the employer or his manager to inform the shop
chairman of the number of employees required from time to time,
it being the obligation of the Union to divide the work equally among
all of the workers of the particular type employed in the plant.
Exception to the division of work arrangement is made in the case
of "extras" who, though Union members and hired in accordance
with the system outlined above, are employed only during the busy
seasons and are not entitled to share work when the employer's
business slackens.
The respondent contends that the agreement was not to be effective
unless the Union obtained similar agreements from the respondent's
competitors. This contention is denied by the Union and is not borne
out by the record. The agreement contains no such stipulation, nor
can Hornick's testimony thereon be taken seriously. He testified that
he had refused to sign the new agreement until October 17, 1935,
although the previous one had expired on August 30, 1935, because
he felt that he could not compete with non-union shops. However,
he later testified that, suffering from hay fever, he was compelled
988 NATIONAL LABOR RELATIONS BOARD
to leave New York City during the months of August and September
with the informal understanding that the terms of the old agreement
would be extended until a new one could be negotiated. Further, he
both pleaded and offered testimony in an attempt to prove that the
Union breached the agreement by failing to supply workers and by
calling a strike. We find that the agreement of October 17, 1935,
was in effect at the time of the dispute under consideration in this
proceeding.
The complaint herein alleged, and from the foregoing facts we
find, that in order to insure to them the full benefit of their right
to self-organization and to collective bargaining, and otherwise to
effectuate the policies of the Act, the production employees employed
by the respondent constitute the unit appropriate for the purposes
of collective bargaining. We further find that a majority of such
employees had designated the Union as their representative and
that, by virtue of Section 9 (a) of the Act, the Union has been, at
all times since December 5, 1935, the exclusive representative of the
production employees for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, or other con-
ditions of employment.2 It should be noted that these facts were not
controverted by the respondent.
The respondent's lay-off of employees on December 4, 1935, and its
conduct thereafter during the dispute which is the primary basis
for this proceeding gain significance and are revealed in their true
meaning in the light of two controversies that arose during the
1935-1936 season. Julius Kessler, at one time employed by the re-
spondent as a knitter, perfected a device that increased the pro-
duction of certain types of knitting machines operated in the re-
spondent's plant. So far as the record discloses, the respondent
was the first to install this device on a production basis. The ma-
chines equipped with this device are known as fast machines, and
the others not so equipped are known as slow machines. It had
been customary for knitters to operate three slow machines. The
first installation of a fast machine was made early in August, 1935,
and as the number of machines converted to fast machines increased,
the knitters operated only two fast machines apiece. The Union
offered testimony to show that the fast machines run almost twice
as fast as the slow machines, thereby increasing production as well
as increasing the effort and energy required to tend the machines,
and lowering production costs. Although the respondent contends
that production is increased by only 15 per cent and is small com-
pared to the claims of the Union, the testimony in support of this
contention is not convincing in view of all the circumstances.
2The respondent ' s operation of a closed shop since 1932 pursuant to its agreements
with the Union clearly requires this finding
DECISION'S AND ORDERS 989
During the latter part of October, 1935, and subsequent to the
signing of the agreement of October 17, 1935, Hornick requested
that the knitters operate two and a half fast machines, meaning
that two knitters be responsible for the output of five machines.
The shop chairman, Rosen, transmitted this request to the knitters
who at first were unwilling to accept this additional burden of
work. The dispute continued for approximately two weeks during
which the knitters held several meetings after executive committee
conferences with Hornick.
The Union contends that in order to induce the knitters to accede
to this request, Hornick finally proposed to guarantee employment
until Christmas, and in the event that he was not able to keep all
of the knitters employed until then, the knitters could return to
the basis of two fast machines per knitter. After some discussion
the knitters accepted this proposal, the agreement being reached on
or about October 25, 1935. The respondent and others still in its
employ denied that any agreement was made with respect to the
operation of two and a half fast machines per knitter other than
that the knitters agreed to so operate them. This denial, however,
is not sufficiently convincing to overcome the testimony of Union
witnesses, nor is it of sufficient weight to overcome the presumptioli
that the knitters would not agree to do more work without receiv-
ing something in compensation. The operation of fast machines,
by increasing the burden of work on the individual knitter, and
increasing production, necessarily would have the effect of curtail-
ing the period of employment during the already short season of
the industry. It may fairly be inferred that the knitters would
not have submitted to Hornick's request without receiving some
concession from him in order to protect their own welfare.
The second controversy involved the performance of paragraph
12 of the agreement of October 17, 1935, which provided that the
respondent's employees should be paid for certain holidays, includ-
ing Thanksgiving Day. Several weeks prior to this holiday Hor-
nick and Weinrub, another manufacturer who was bound by a simi-
lar provision, communicated with the Union in an effort to secure
a waiver of this provision by the Union, but their request was not
granted.
That the respondent expected a breach with the Union as a result
of these disputes and took steps to prepare for it is unquestionably
revealed in the record. Four knitters testified that they had been
approached and offered inducements to drop their membership in
the Union. Joseph Hershkowitz, a knitter and a member of the
shop committee and the executive board, testified that three weeks
before Thanksgiving Day Hornick told him that he would not pay
for Thanksgiving; that "he (Hornick) fought the Union before and
990 NATIONAL LABOR RELATIONS BOARD
he is prepared to fight them again". Hornick further told the
witness to work for him and he (the witness) would be better off.
"He said either it is I work with him or stay with the Union."
Morris Stern and Jack Golden, both "extra" knitters, were likewise
approached by Hornick during November, 1935, and offered steady
employment if they would drop out of the Union. Golden, first
approached by Mr. Arthur Martin, his foreman, about one week
before Thanksgiving Day, testified as follows :
"Q. What conversation did you have with him (Martin) ?
"A. Well, lie came over to my machines and told me that,
`well, there was a lot of talk about Thanksgiving, that Mr. Hor-
nick would not pay for that holiday'. It was stipulated in the
contract that he would pay for that holiday but there was a
lot of talk going on that he wouldn't pay and Arthur Martin
told me, he said, `Mr. Hornick is not going to pay for Thanks-
giving. Now, the Union might call a strike. In case the Union
calls a strike', he said, `the best thing being that I am an extra
was for me to remain at work and I would get steady em-
ployment.'
"Q. After that did you have any discussion with Mr. Hornick
about the same thing?
"A. Well, the following day Mr. Hornick came over and
said, `Did Arthur speak to you yesterday?' I said, `yes'. He
said, `Well, what do you say?' I said, `I don't think it is the
right thing for me to do."'
It is significant that both Stern and Golden, as well as Samuel
Biller, who was later solicited to work after the lay-off of December
4, 1935, were "extra" knitters and as such would presumably have
been amenable to suggestions that would secure steady employment
for them.
On Tuesday, December 3, 1935, the first pay-day after Thanks-
giving, the respondent paid its employees for the preceding week
excluding Thanksgiving Day. Other employers, likewise members
of the Passementerie and Trimming Manufacturers Association, also
failed to pay for the holiday. The Union immediately informed
Samuel Tullman, counsel for the Association, and a conference was
arranged for the following day. On December 4 representatives of
the Union and the employers met, the employers agreed to pay for
the holiday, and the respondent made such payments to its em-
ployees at noon on that day.
On the evening of the same day Rosen, the shop chairman who
was then working on the night shift, was informed by the respondent's
manager that the night shift would be laid off, as well as some of the
DECISIONS AND ORDERS 991
employees on the regular day shift-a total of 35 workers. Twenty-
six knitters had been employed on December 4, and the order for
the following day called for only 12. At that time both the re-
spondent's and the Union records show that the total number of
production employees was 98. The lay-off amounted to over one-
third of the production force. Coming in the midst of a busy season,
especially since a night shift had been added only a short time
before, the lay-off appeared to be peculiarly drastic. Coming im-
mediately after the Union had compelled the respondent to comply
with the terms of the agreement, it indicated that the respondent was
attempting to discipline the Union for forcing the payment of wages
for Thanksgiving.
Rosen left the plant, went to Union headquarters, consulted with
the workers, and arranged that 12 knitters report to the respondent's
plant on the morning of December 5. There was some testimony
indicating that the knitters were instructed to go back to the previous.
quota of two fast machines per man as provided by the agreement
with the knitters in the event that all of them were not employed
until Christmas.
On the morning of December 5, 1935, six of the 12 knitters reported
lo work at eight o'clock, the hour when work in the plant begins.
Although the testimony regarding the events of the morning is
conflicting, it is agreed that only six men reported on time, that those
knitters who were n orking on fast machines were determined to
operate only two apiece, and that Hornick conversed with some of
the men. Hornick contends that he asked the men to stay and
operate two and a half machines until he could get in touch with
Samuel Stember, a Union official, and adjust the dispute. The Union
claims that Hornick ordered the knitters out of the plant. It is
also agreed that the six men left the plant at about 8:15 or 8:20.
As they were leaving the building they met the other six knitters
who were coming to work; all then proceeded to Union headquarters,
arriving between 8: 30 and 9: 00 A. M., and informed Stember of
what had occurred. Stember immediately telephoned Tullman and
told him that the respondent had broken its agreement; that it had
laid off the workers during the period when it had promised to keep
them in work. Stember also tried to reach Hornick over the tele-
phone but was unsuccessful. At about noon he saw Hornick at the
latter's office and asked him why the 35 employees, especially the
knitters, were laid off. According to Stember, Hornick replied that
he wanted the knitters to operate two and a half machines, and
when he was reminded of his agreement to permit them to return
to two machines in the event of a lay-off before Christmas, he
responded, "I have nothing to say-I am through. I don't want,
to bother any more."
992 NATIONAL LABOR RELATIONS BOARD
That afternoon the executive board of the Union received the fol-
lowing letter from Tullman :
"GENTLEMEN :
"I have this day been informed by Louis Horuick & Co. Inc.
that on December 4th, 1935, he ordered your shop-chairman to
send in 12 knitters for December 5t11, 1935. That on the morn-
ing of December 5th, 1935, only six out of the 12 came in, and
they refused to start work and walked out. Since none of the
12 men came in all day, and your union has refused to supply
other knitters although your Mr. Zinberg was up to see Mr.
Hornick at 12 M. and knew the circumstances, Mr. Hornick was
obliged to apply for similar lie] I) elsewhere.
"As Counsel for the Association of Manufacturers of which
Mr. Horuick is a member, I am giving you notice by this regis-
tered mail that having refused to supply help as provided by
your contract, Mr. Hornick declares your contract as having
been broken on your part, and will seek his help from other
sources."
The implications of the respondent's course of action on this day
are obvious and lead unquestionably to the conclusion that the re-
spondent was attempting to avoid its contractual obligations with
the Union. Assuming that Hormel: asked the knitters to continue
working until he could communicate with the Union and that they
left of their own accord, such action on the part of the knitters
would reasonably have made more imperative the necessity for the
respondent to communicate with the Union. Admittedly, however,
the respondent made no effort to reach Union officials, but authorized
the sending of the letter couched in uncompromising language. The
respondent lays stress upon the fact that only six knitters reported
for work at eight o'clock, yet in view of evidence introduced to
show that employees often arrived late to work, buttressed by the
fact that lateness was so usual as to require a specific provision in
the collective agreement for deduction of wages of late employees,
the respondent's justification for its conduct is too thin for serious
consideration. This is particularly true in view of the anti-Union
intention of the December 4th lay-off. Furthermore, the respond-
ent's letter leaves no room for doubt that it was desirous of breaking
off completely with the Union. Tullman wrote that the respondent
was obliged to apply for help elsewhere, and expressed the respond-
ent's intention to seek help from other sources in the future. The
respondent's actions admit of but one interpretation, and give cre-
dence to Stember's testimony regarding Hornick's statement : "I have
nothing to say-I am through. I don't want to bother any more."
On Friday, December 6, 1935, Stember replied to Tullman's letter,
asserted that the statements in Tullman's letter were not correct and
DECISTON S AND ORDERS 993
that 12 knitters would again be sent to the respondent's plant on
Monday, December 9. In addition, Stember telephoned Tullman
and arranged to meet him that morning at the respondent's office
in order to adjust the dispute. Stember, with another Union organ-
izer, Zinberg, again conferred with Hornick, Tullman having failed
to appear for the conference. The discussion on this day was as
unsatisfactory as the one on the 5th, Hornick repeating that he
wanted the knitters to operate two and a half machines apiece;
that if the Union would not agree, he did not want to have anything
to do with the Union.
On Saturday, December 7, in accordance with a request from
Tullman, Rosen went to the respondent's plant to learn whether any
knitters were required for Monday, the 9th, and was informed that
none would be required. Nevertheless, on Monday, 12 knitters did
report for work. They were met by Hornick, who told them that
no knitters were needed and that he wanted no more Union knitters.
Although Hornick denied that he said anything about the Union,
his denial is hardly plausible after his statements to Union repre-
sentatives and the statements contained in the letter written by Tull-
man. The Union contends that later in the day, Monday, the re-
spondent was employing four knitters, previously employed as
"extra" knitters, who were members of the Union and who were
working without the consent of the' Union. The Union also intro-
duced evidence indicating that the respondent had arranged on Sat-
urday, the 7th, to secure these men for the following week. Al-
though Hornick and other witnesses for the respondent denied that
such arrangements had been made, or that these knitters were work-
ing on Monday, it was admitted that the men in question did work
on Tuesday, December 10, and, were still working at the. time of
the hearing. In the light of this admission, the testimony that the
respondent had attempted in November to induce knitters to ' drop
their Union membership, and the testimony,of Union representatives
that Hornick was adamant in his refusal to discuss the dispute take
on greater weight, and leave little doubt as to the reason why the
respondent refused employment to Union knitters.
On Monday, December 9, a preliminary strike vote of the em-
ployees of the respondent was taken, and the executive committee
was authorized to call a strike if necessary to secure the reinstate-
ment of the union knitters. On Tuesday, December 10, members of
the Union who were working for the respondent but who were not
employed as knitters, saw the four "extra" knitters operating the
knitting machines. This was reported to the Union, and at a meet-
ing called at noon the workers voted to strike, after which all of the
production employees, with the exception of the four "extra" knit-
ters, went out on strike. Immediately after the strike vote a com-
994 NATIONAL LABOR RELATIONS BOARD
mittee of the Union again conferred with Hornick and was rebuffed,
being told that he would have nothing to do with Union knitters.
Subsequently approximately 15 members of the Union returned
to work, although the strike was still in progress. At the date of
the hearing the respondent had approximately 40 workers employed,
of which from 25 to 30 were old employees who had gone out on
strike but had returned. The respondent lays great stress on the fact
that Union members were returned to work, and that none of the
members so employed were asked whether they were then members
of the Union. This was offered as proof that the respondent did not
discriminate against Union members and is predicated upon Horn-
ick's statement that he did not know that persons so returning to
work would be dropped from the Union. It is difficult, however,
to give credence to such a statement from a man who has been in
the same business for 18 years, and has had dealings with labor
organizations over a period of at least four years. We cannot believe
that he was unaware of the Union custom of dropping members who.
return to work during a strike.
In the days following the strike and until January 20, 1936, the
Union made a number of attempts to settle the dispute, but to no,
avail. On January 20, 1936, a conference was arranged between
Rosenberg, the general representative of the United Textile Work-
ers of America, and Tullman, at which time Tullman, speaking for
the respondent, stated that he had nothing about which to confer.
Consideration of all the evidence leads unquestionably to the con-
clusion, and we so find, that the respondent, by its lockout of Union
knitters on December 10, 1935, by its refusal to employ knitters sent
by the Union and by giving work to men independently hired, dis-
criminated in regard to hire and tenure of employment to discourage
membership in the Union. After having made an agreement with-
the knitters, the respondent deliberately refused to abide by it, as the
respondent had previously attempted to do with respect to the
Thanksgiving Day pay. Having thus refused, it further refused
to enter into any negotiations in order to effect a change in the agree-
ment which would be satisfactory both to the respondent and the
knitters. Instead an arbitrary stand was taken, requiring the Union
to meet the demand that the knitters operate two and a half ma-
chines per man, as indicated by the testimony of Union witnesses and
Tullman's letter of December 5. We find that the Union attempted,
on December 5, 6, 9, and 10, 1935, to bargain collectively with the
respondent, as representative of the respondent's production em-
ployees, in respect to rates of pay, wages, hours of employment, and
other conditions of employment. We further find that the respond-
ent refused so to bargain collectively with the Union.
DECISIONS AND ORDERS 995
By its refusal to bargain collectively , its discrimination against
Union knitters as above set forth, and its solicitation of Union em-
ployees to drop their membership in the Union, the respondent has
interfered with, restrained , and coerced its employees in the exercise
of their right to self-organization , to form, join , or assist labor or-
ganizations, 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.
III. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
As indicated above, the greater majority of the respondent's pur-
chases are received from States other than New York, and over 60
per cent of its products are shipped to points outside the State.
Since the respondent manufactures to fill orders as they are received,
and maintains but small storage facilities and stock on hand, its
business is particularly susceptible to the effects of -labor contro-
versies, especially those occurring during the busy season. The
respondent 's employees have been effectively organized since 1932,
and within the period of two and a half to three years prior to the
hearing in this case the respondent has been subject to approximately
ten strikes, ranging in length from two to six weeks. Hornick testi-
fied that during these strikes the plant was not operating , that ship-
ments were curtailed , and business fell off as much as 30 and 40 per
cent. The causes of these various strikes are not fully indicated,
although in one instance a strike was called because the respondent
did not increase wages as it had agreed.
In its answer the respondent alleges that the Union , by breaching
its agreement , is "impairing and disrupting the markets for goods
flowing into the channels of commerce".
The activities of the respondent set forth in Section II above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate , and substantial
relation to trade, traffic , and commerce among the several States,
and have led and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
THE REMEDY
Under Section 2, subdivision (3) of the Act, an employee whose
work has ceased as a consequence of or in connection with a labor
dispute, or because of any unfair labor practice, retains his employee
status as long as such labor dispute remains current and as long as
he has not obtained regular and substantially equivalent employment.
It cannot be questioned that the strike which began on December
5727-37-vol. u-64
996 NATIONAL LABOR RELATIONS BOARD
10, 1935, and which is still in progress, constituted a, current labor
dispute, nor can it be questioned that the refusal of the respondent
to bargain collectively constituted an unfair labor practice. Conse-
quently, it follows that all of the striking production employees
retain their employee status. In addition, the lockout of knitters
on December 10, 1935, being an unfair labor practice, could not have
had the effect of terminating their status as employees.
The strike in this case was called not only in protest against' the
respondent's discrimination against Union members by its lockout
of Union knitters, but also in protest against the refusal of the re-
spondent to bargain collectively with the Union. This wrongful
conduct accordingly took the form of an unlawful practice directed
against all of the employees who were members of the Union. In
order to restore the status quo as it existed prior to December 10,
1935, the time the respondent locked out the knitters who were mem-
bers of the Union, and in order to enable the processes of collective
bargaining to operate, it is necessary that all of the strikers be re-
instated. Persons employed for the first time since December 10,
1935, must be dismissed, and any "extra" knitters who had worked
for the respondent theretofore and who replaced the regular knitters
after the lockout must be restored to their previous status, if that is
necessary to enable the respondent and the Union to reestablish the
custom prevailing between them prior to December 10, 1935.
Since the knitters were discharged, they are also entitled to receive
back pay from the date of the lockout, December 10, 1935, until the
respondent offers to reinstate them." Although the lockout affected
12 knitters on that day, their identities for the purposes of receiving
back pay are not controlling since prior to the lockout and until De-
cember 4, 1935, employment was shared by a larger group then em-
ployed by the respondent.4 Accordingly, the amount of the respond-
ent's payroll budgeted to knitters from December 10, 1935, until the
respondent offers reinstatement to Union knitters should be appor-
tioned among those knitters employed by the respondent on December
4, 1935, less any amount they may have earned within such period
in lieu of the earnings they would have received from employment by
the respondent.5
See Matter of Sunshine Hosie, y Mills and Branch No. 55, American Federation of
Hosiery Workers, I N. L. R. B. 664.
The exact number of knitters who shared the work is not shown by the record.
'The group of 26 mentioned in the record includes a number of "extra" knitters who
did not share in the employment. (See p. 987, supra)
5 Owing to seasonal variations in the industry and the sharing of employment by
workers, many of the respondent 's employees may have had employment in other plants
both during the period they worked for the respondent and subsequent to the lockout
It is not intended that amounts so earned, which would have been earned even had the
lockout not taken place, be deducted from the sum due to the knitters from the
respondent.
DECISIONS AND ORDERS 997
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the proceeding, the Board makes the following con-
clusions of law :
1. Textile Trimming Workers Union, Local 2440, United Textile
Workers of America is a labor organization, within the meaning of
Section 2, subdivision (5) of the Act.
2. The production employees employed by the respondent consti-
tute a unit appropriate for the purpose of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. By virtue of Section 9 (a) of the Act, the Textile Trimming
Workers Union, Local 2440, United Textile Workers of America,
having been designated as their representative by a majority of the
employees in an appropriate unit, was on October 17, 1935, and at
all times thereafter has been, the exclusive representative of all em-
ployees in such unit for the purpose of collective bargaining.
4. By discriminating in regard to the hire and tenure of employ-
ment of its knitters, thereby discouraging membership in the labor
organization known as the Textile Trimming Workers Union, Local
2440, United Textile Workers of America, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8, subdivision (3) of the Act.
5. By refusing and continuing to refuse to bargain collectively
with the Textile Trimming Workers Union, Local 2440, United Tex-
tile Workers of America, as the representative of its production em-
ployees, the respondent has engaged in and is engaging in unfair
labor proctices, within the meaning of Section 8, subdivision (5) of
the Act.
6. 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, subdivision (1) of the Act.
7. The strike of the employees of the respondent is a labor dispute,
within the meaning of Section 2, subdivision (9) of the Act.
8. The persons employed by the respondent in the unit described
above were on December 10, 1935, and continued thereafter to be
employees of the respondent except in so far as they obtained regular
and substantially equivalent employment elsewhere, in lieu of em-
ployment by the respondent, within the meaning of Section 2, sub-
division (3) of the Act.'
9. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
6 See footnote 5, supra.
998 NATIONAL LABOR RELATIONS BOARD
ORDER
On the basis of the findings of fact and conclusions of law, anct
pursuant to Section 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Louis Hornick & Co., Inc., and its officers, agents,
successors, and assigns, shall:
1. Cease and desist :
(a) From discouraging membership in the Textile Trimming
Workers Union, Local 2440, United Textile Workers of America, or
any other labor organization of its employees, by discharging, refus-
ing to reinstate, or otherwise discriminating against its employees in
regard to hire or tenure of employment or any term or condition of
employment ;
(b) From in any other manner interfering with, restraining or
coercing its employees in the exercise of their rights to self-organiza-
tion, to form, join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining and other
mutual aid or protection;
(c) From refusing to bargain collectively with the Textile Trim-
ming Workers Union, Local 2440, United Textile Workers of America
as the exclusive representative of its production employees.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to those of its employees who were employed on Decem-
ber 4, 1935, who struck on December 10, 1935, and who have not
since received regular and substantially equivalent employment else-
where in lieu of the employment received from the respondent, where
the positions held by such employees on December 4, 1935, are now
filled by persons who were hired for the first time after the strike
was called, reinstatement in their positions in accordance with the
custom prevailing between the respondent and the union prior to
December 10, 1935.8 The detailed execution of this paragraph of
the Order shall be in accordance with the conditions prescribed in the
section of the decision entitled "The Remedy" ;
(b) Make whole the persons employed as knitters on December 4,
1935, and each of them, for any losses of pay they have suffered by
reason of their lockout on December 10, 1935, by payment to them,
respectively, of a sum of money equal to that which each of them
would normally have earned as wages during the period from the
date of their lockout to the date of such offer of reinstatement, less
the amounts, if any, which each earned during such periods in lieu
of the amounts which each would have earned had such lockout not
been effected. The detailed execution of this paragraph of the Order
DECISIONS AND ORDERS 999
shall be in accordance with the conditions prescribed in the section
of the decision entitled "The Remedy";
(c) Upon request , bargain collectively with the Textile Trimming
Workers Union, Local 2440, United Textile Workers of America, as
the exclusive representative of its production employees , with re-
spect to rates of pay, wages , hours of employment , and other con-
ditions of employment;
(d) Post notices in conspicuous places in its plant stating (1)
that the respondent will cease and desist as aforesaid, and (2) that
such notices will remain posted for a period of thirty ( 30) con-
secutive days from the date of posting;
(e) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.