North River Yarn Dyers

National Labor Relations Board - Board Decisions

Jan 9, 1939

10 N.L.R.B. 1043 (N.L.R.B. 1939)

In the Matter Of SIGMUND FREISINGER , DOING BUSINESS UNDER THE
NAME AND STYLE OF NORTH RIVER YARN DYERS and TEXTILE WORK-
ERS ORGANIZING COMMITTEE
Case No. C-367.-Decided January 9, 1939
Yarn Dyeing Industry-Interference, Restraint, and Coercion: opposition to
outside union expressed through terms of abuse applied to organizers and mem-
bers-Discrimination : discharge and refusal to reinstate ; charges of , not sus-
tained as to one person-Collective Bargatining: lack of good faith in bargaining
demonstrated through constantly shifting position; employer ordered to bargain
collectively with union and, if an' understanding is reached, embody such under-
standing in a written signed agreement-Stralce: caused and prolonged by em-
ployer's unfair labor practice-Reinstatement Ordered: employee discharged and
employee refused reinstatement; striker, upon application-Back Pay: awarded;
ordered, to striker if not reinstated or placed on preferential list, upon appli-
cation.
Mr. Mark Lauter, for the Board.
Mr. Alfred Udo ff, for the T. W. O. C.
Mr. Sigmund Freisinger, pro se.
Mr. Philip B. Lush , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE '
Upon charges and amended charges duly filed by Textile Workers
Organizing Committee, herein called the T. W. O. C., the National
Labor Relations Board, herein called the Board, by the Regional 11;
rector for the Second Region (New York City), issued a complaint,
dated October 21, 1937, against Sigmund Freisinger, doing business
under the name and style of North River Yarn Dyers, Union City,
New Jersey, herein called the respondent, alleging that the respond-
ent had engaged in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section 8 (1), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. Copies of the complaint, accom-
panied by notice of hearing, were duly served upon the respondent
and the T. W. O. C.
10 N. L. R. B., No 93.
1043
1044 NATIONAL LABOR RELATIONS BOARD
The complaint alleged, in substance, that on or about May 25, 1937,
and at all times thereafter, the respondent refused to bargain collec-
tively with the T. W. O. C. as the exclusive representative of the re-
spondent's employees in an appropriate bargaining unit ; that the re-
spondent discriminated in regard to the hire and tenure of employ-
ment of four persons named in the complaint, thereby discouraging
membership in the T. W. O. C.; and that by these and other acts and
conduct the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them in Section 7
of the Act. The respondent did not file an answer.
Pursuant to a second amended notice of,hearing, copies of which
were duly served upon the respondent and the T. W. O. C., a hearing
was held at New York City on November 18, 1937, before Isaac C.
Sutton, the Trial Examiner duly designated by the Board. The
T. W. O. C. was represented by counsel and participated in the hear-
ing. The respondent, Sigmund Freisinger, appeared in his own
behalf. Full opportunity to be heard, to examine and cross-examine
witnesses, and to produce evidence bearing upon the issues was af-
forded all the parties. At the commencement of the hearing the Trial
Examiner permitted the complaint to be amended in accordance with
a written motion by counsel for the Board, copies of which had been
duly served upon the parties prior to the hearing. The Trial Exami-
ner also granted a motion by counsel for the Board to dismiss the
allegations of the complaint setting forth the discriminatory dis-
charge of one person named therein, Setrag Kavazanjian. These
rulings are hereby affirmed. The respondent made no objections dur-
ing the course of the hearing. The respondent did not cross-examine
the witnesses called by the Board. Upon the completion of the
presentation of the Board's case, the respondent testified in his own
behalf. He called no other witnesses. The Trial Examiner assisted
the respondent in introducing relevant evidence into the record.
On January 21, 1938, the Trial Examiner filed an Intermediate
Report, copies of which were duly served upon all parties, finding
that the respondent had engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the Act, and recommending that the
respondent cease and desist therefrom and, affirmatively, bargain
collectively with the T. W. O. C., offer full reinstatement with back
pay to two persons named in the complaint and offer one person
named in the complaint full reinstatement as an employee.
On January 22, 1938, the respondent filed exceptions to the Inter-
mediate Report. The Board has considered the exceptions and finds
them to be without merit.
On May 67 1938, the respondent and the T. W. O. C. were notified
that they had a right to apply within ten (10) days for oral argu-
DECISIONS AND ORDERS 1045
inent before the Board and for permission to file briefs, but neither
so applied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Sigmund Freisinger,- is engaged in the business
of dyeing yarn, including rayon, wool, and other similar materials.
He owns and operates a plant at Union City, New Jersey, and con-
ducts his business under the name and style of North River Yarn
Dyers. The principal raw materials used by the respondent in the
process of dyeing are aniline dyes and chemicals. During 1936 the
respondent purchased raw materials amounting in value to $18,429.98,
of which 85 per cent represented raw materials shipped to the respond-
ent from points outside New Jersey. Ninety-nine per cent of the yarn
dyed by the respondent is shipped to him by customers who retain
title to the yarn while it is in the possession of and being dyed by
the respondent. Up to June 1937 approximately 80 per cent of the
materials dyed' by the respondent for his customers were shipped to
the respondent from points outside New Jersey, and, after process-
ing, were shipped by the respondent to points outside New Jersey.
The respondent employs one salesman who carries on his activities
in the States of New York and New Jersey. The respondent adver-
tises in trade journals having circulation in States other than New
Jersey. Part of the goods handled by the respondent are shipped
over interstate trucking lines.
II. TIIE ORGANIZATION INVOLVED
Textile Workers Organizing Committee is a labor organization
affiliated with the Committee for Industrial Organization, admitting
to its membership .all employees of the respondent except supervisory
and clerical employees.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The, appropriate unit
The complaint alleged that all the respondent's employees at his
plant at Union City, New Jersey, excluding clerical and supervisory
employees, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
The respondent did not controvert or raise any-objection to the, unit
alleged in the complaint to be appropriate. The unit is a normal
industrial unit.
147841-39-vol 10--67
1046 NATIONAL LABOR RELATIONS BOARD
We-find that all the respondent's employees at his plant at Union
City, New Jersey, excluding clerical and supervisory employees,
constitute a unit appropriate for the purposes of collective bargain-
ing and that said unit will insure to the respondent's employees the
full benefit of their right to self-organization and collective- bargain-
ing and otherwise effectuate the policies of the Act.
2. Representation by the T. W. O. C. of the majority in the
appropriate unit
The complaint alleged that on or about May 25, 1937, and there-
after, the respondent refused to bargain collectively with the
T. W. O. C., and further alleged that on or about April 21, 1937, and
at all times thereafter, the Union represented a majority df the
employees in the appropriate unit. This was neither denied nor
controverted by the respondent. A list was offered in evidence show-
ing the name and the date of application for membership in the
Union of 27 of the respondent's employees.
The list was properly identified and was admitted in lieu of the
membership cards which were tendered for inspection at that time.
There was no objection made by or on behalf of the respondent.
This list not only included all of the respondent's employees in the
appropriate unit working on April 21, 1937, but also 8 or 10 others
who were employed from time to time by the respondent but were
not working at the time of the T. W. O. C.'s organizational drive
in April. One of the T. W. O. C. organizers admitted that two
persons named on the list had subsequently withdrawn from the
Union, but these withdrawals do not affect the majority of the
T. W. O. C. in the appropriate unit.
We find that on April 21, 1937, and at all times thereafter the
T. W. O. C. was the duly designated representative of a majority of
the employees in the appropriate unit, and, pursuant to Section 9 (a)
of the Act, was the exclusive representative of all the employees in
such unit for the purposes of collective bargaining in respect to
rates of pay, wages, hours of work, and other conditions of
employment.
3. The refusal to bargain
There was no labor organization among the respondent's em-
ployees prior to the advent of the T. W. O. C. in April 1937.
Although by April 22, 1937, the membership of the T. W. O. C.
included all the respondent's employees in the appropriate unit, no
attempt to bargain with the respondent was made until May 24,
1937. On that date, the respondent, Freisinger, was informed by
Peter Paul Kavazanjian, an employee and active member of the
T. W. O. C., that the T. W. O. C. had a membership of 100 per cent
DECISIONS AND ORDERS 1047
in the respondent's plant and that the, T. W. 0. C. representatives
were going to call on him that very day. In reply Freisinger stated
that if any T. W. 0. C. representatives called on him he would
"throw them out."
Later the same day, Richard Cerviello and Frank Benti, T. W.
0. C. organizers, came to the respondent's plant to see Freisinger.
There they met Kavazanjian and the three men proceeded to Freis-
inger's office. Although Freisinger was in his office, his stenogra-
pher, according to instructions, informed the T. W. 0. C. representa-
tives that he was not in. They then left the building, but waited in
a car parked close to the door of the plant. About a half hour later
Freisinger came out. Cerviello went up to Freisinger and informed
him that he represented the T. W. 0. C. which had organized his
employees. Freisinger stated that he was too busy to discuss matters,
at the time, and, further, that he was leaving town for 2 or 3 weeks.
The following day, May 25, 1937, Al Barkan, State regional direc-
tor of the T. W. 0. C., Cerviello, Benti, Kavazanjian, Freisinger, and
Leo Wolf, a supervisory employee of the respondent, held a confer-
ence in Freisinger's office. Barkan presented Freisinger with a
mimeographed copy of a standard contract for the industry. Freis-
inger observed that since he was engaged only in skein dyeing, many
of the provisions of the standard contract were inapplicable to his
business. He requested 2 days in which to examine the contract and
to consult his attorney. His request was agreed to and Freisinger
promised to communicate with the T. W. 0. C. representatives,
within that time.
After several days had elapsed without word from Freisinger, the
T. W. 0. C. representatives requested Chief of Police Jenkins of
Union City to bring about a conference. Such a conference was
arranged for June 1, 1937. At this conference Freisinger declared
that he had not had time to consult his attorney and that, therefore,
he was not adequately informed concerning his duties under the Act.
The T. W. 0. C. called in William Cohen, an attorney, who explained
the provisions of the Act. Freisinger then stated that lie was a
member of an employers' association which was conducting nego-
tiations in New York with the T. W. 0. C. and that he did not wish'
to make any commitments until the association had completed its
negotiations.
The following day, June 2, 1937, another conference was held in.
the office of an attorney named Solomon, who represented the re-
spondent throughout the subsequent negotiations. Freisinger was
not present at this conference and Solomon informed the T. W. 0. C.
representatives that he was unable to negotiate the question of wages.
in Freisinger's absence. After a general discussion of recognition' of-
the T. W. 0. C. Solomon asked why the T. W. 0. C. would: net "give
1048 NATIONAL LABOR RELATIONS BOARD
them the Chrysler formula." In answer, to, an inquiry as to what
he meant by the "Chrysler formula" Solomon advised the T. W.
'O. C. representatives to read the newspapers. Later in the same
conference Solomon said that he did not want the "Chrysler for-
mula," but the "Inland Steel formula." Upon inquiry as to the
nature of the "Inland Steel formula," he again referred the T. W.
O. C. representatives to the newspapers.
The next day, June 3, 1937, a conference was again held in Solo-
mon's office. Freisinger was present and certain understandings were
reached concerning wages and hours. The T. W. O. C. demanded
the reinstatement of Kavazanjian, whose discharge is discussed below.
Freisinger stated that he did not wish to enter into a contract of his
own, but that he would accept any contract that the association of
employers accepted. The T. W. O. C. representatives agreed, but
Freisinger then declared that he had been advised by his attorney
not to enter into any contract until the Supreme Court of the United
States decided whether an employer was required to execute a written
-contract.
The following day, June 4, 1937, the T. W. O. C. called a strike at
the respondent's plant because it had become convinced that the
respondent was not sincere in his efforts to bargain collectively, as
evidenced (1) by his dilatory tactics in the process of negotiation, such
as his refusal to proceed in the absence of Solomon and vice versa,
and (2) by the respondent's continual shifting of his position on
material questions and his attorney's refusal to state clearly their
position. The strike lasted until August 2, 1937.
On June 15, 1937, Attorney Cohen called on Attorney Solomon at
the latter's office. Solomon informed Cohen that the only ques-
tion in dispute was the closed shop. Cohen offered to obtain the
T. W. O. C.'s permission to insert in the proposed contract a para-
graph providing that the T. W. O. C. should be the collective bargain-
ing agency of its members only and that the respondent should have
the right to go into the open market for such new employees as he
needed. When Solomon agreed, Cohen asked him specifically if
everything else was "agreeable." Solomon answered in the affirma-
tive. Cohen consulted Barkan and obtained his consent to the change.
On June 16, 1937, Cohen telephoned Solomon and informed him that
the T. W. O. C. had agreed to the change and that he, Cohen, wished
to go to Solomon's office and have the contract signed. Solomon sug-
gested that the contract be retyped and sent to him. Cohen replied
that he would have the contract retyped and then take it to Solomon
for signature. Thereupon Solomon informed Cohen that he "did not
do business that way," that he did not wish to see Cohen, and that he
desired a "couple of days" to examine the contract before signing it.
DECISIONS AND ORDERS 1049
On June 17, 1937, Cohen and Barkan again requested Chief of
Police Jenkins to arrange another conference of the parties in his
office. Jenkins informed them that Solomon had told him that only
the question of a closed shop prevented a settlement. Cohen then pre-
sented Jenkins with the proposed contract with the provision set
forth above substituted for the closed-shop provision and requested
Jenkins to present it to either Freisinger or Solomon. Jenkins agreed
and telephoned Freisinger. Upon Freisinger's refusal to discuss the
matter in the absence of his attorney, a conference was arranged for
June 24, 1937. Between June 17 and June 24, 1937, the T. W. O. C.
revised slightly the wording of the substitute provision and added a
clause to the effect that the respondent, upon the request of the
T. W. O. C., would dismiss any member of the T. W. O. C. who was
not in good standing. It does not appear in the record that the
respondent at any time objected to these amendments.
At the conference held in Solomon's office on June 24, 1937, Solomon
at first assumed the position that the respondent would not enter into
any written contract. Later he declared that the respondent would
not execute a contract such as the T. W. O. C. offered, but that the
respondent would like to adopt the agreement reached by the employ-
ers' association, if the respondent was granted certain wage differ-
entials. Solomon promised to obtain Freisinger's consent to the con-
tract of the employers' association, if so amended. At this and the
many other conferences with Solomon the T. W. O. C. requested the
presence of Freisinger, but Solomon invariably informed them that
Freisinger was too busy.
At this conference Cohen, attorney for the T. W. O. C., made short-
hand notes of a statement dictated by Solomon of the matters to
which Freisinger was willing to consent. This statement incorpo-
rated by reference the contract which was then being negotiated with
the employers' association and granted the respondent certain wage
differentials on the basis of the territorial location of his plant and
its small size. Cohen read the shorthand notes to Solomon who
agreed to their accuracy. The T. W. O. C. gave its consent and Solo-
mon telephoned Cohen later and informed him that Freisinger had
agreed.
On June 28, 1937, another conference was held in Solomon's office.'
Cohen brought with him a contract which he had prepared from the
notes which Solomon had dictated at the preceding conference. Solo-
mon made no objection to the terms of the contract, but denied that
he had agreed to a written contract. He then proceeded to inquire
why the T. W. O. C. would not settle on the basis of the "Inland
Steel formula," whereupon the conference terminated. In the after-
noon of the same day another conference was held, at which Solomon
offered to write a letter to Cohen stating that if the men returned to
1050 NATIONAL LABOR RELATIONS BOARD
work the respondent would pay certain specified wages and would
adopt certain working conditions. When the T. W. 0. C. representa-
tives refused to accept his offer, Solomon accused them of holding the
men out on strike against their will. The T. W. 0. C. representa-
tives declared that the men would not accept his proposition and
offered to permit him to lay it before them. Solomon refused. The
T. W. 0. C. representatives offered to submit such a letter to the men
for approval, if Solomon would write it. • He then sought to excuse
himself on the ground that his stenographer had departed for the
day, but Cohen volunteered to act as stenographer and typed the
letter at Solomon's dictation. Although no wage scales or hour stand-
ards appeared in this drafted letter, Solomon refused to sign it. It
was never signed by Freisinger or by a person with authority to bind
the respondent.
At a T. W. 0. C. meeting held that night the men refused to accept
Solomon's proposal.
Nothing was accomplished at another conference held on July 1,
1937, nor was any progress made at a conference held sometime later.
The strike ended on or about August 2, 1937, and the men returned
to work, although none of the complaints and issues which led to the
strike had been settled. During the course of the strike the respondent
had continued to operate on a reduced scale by the employment of
strikebreakers.
Concluding Findings
An examination of the long course of negotiations between the
'respondent and the T. W. 0. C. representatives leads only to the
'conclusion that the respondent refused to bargain collectively with
the T. W. 0. C. The respondent's refusal to bargain collectively
is shown (1) by his plainly dilatory tactics, such as the recurrent
shifting of his position whenever an agreement seemed to have been
reached, (2) by the absence of either Freisinger or Solomon at many
of the conferences, thereby creating a situation which prevented effec-
tive negotiation, and (3) by the respondent's refusal to enter into a
written contract, when the respondent had apparently exhausted his
objections to the substantive terms of the contract. In reference to
the respondent's refusal to enter into a written contract with the
T. W. 0. C., even though an-understanding was reached, we repeat
what we said in Matter of Inland Steel Company: 1
Section 8 (5) of the Act requires an employer to accept the
procedure of collective bargaining in good faith, and the nature
of this obligation must be determined in the light of the prevailing
practice of collective bargaining and the spirit and purpose of
i Matter of Inland Steel Company and Steel Workers organizing Committee and Amalga-
mated Association of Iron, Steel, and Tin Workers of North America , Lodge Nos 64, 1010,
and 1101, 9 N. L. R. B. 783
DECISIONS AND ORDERS 1051
the Act as a means of avoiding industrial strife. We regard it
as well settled that collective bargaining in good faith requires a
willingness to consummate the negotiations, if successful, by enter-
ing into some sort of an agreement. And we hold that under
circumstances such as are presented here, it is the employer's
obligation to accede to a request that understandings reached
be embodied in a signed agreement. The present controversy is
projected on the background of a long struggle by labor organiza-
tions to attain full recognition of their right to recognition as
collective bargaining agencies with a dignity equal to that of the
employers with whom they deal. We take judicial notice of the
fact that today thousands of employers have accorded unions their
right to normal contractual relationships, and that, as is shown
by the record, the signed collective bargaining agreement is the
prevailing practice. From the viewpoint of harmonious and
cooperative labor relations, as well as of sensible business prac-
tice, the importance of embodying understandings in signed agree-
ments is obvious. Whether there may be, in some future case,
circumstances indicating that the employer there involved may
under the Act decline to embody understandings in a signed agree-
ment, we need not here decide. It is certain that we are not
confronted with such circumstances in this case. To say that
there is something impracticable about a signed collective bar-
gaining agreement with a large steel 'manufacturing concern,
justifying an exception from the general practice, would be to
shut our eyes to facts of common knowledge concerning recent
labor history. As a matter of fact, the reasons advanced by
the respondent, considered in connection with the factual back-
ground of the current dispute, indicate clearly that the respondent
was and is motivated in its action by a desire to check the progress
of the S. W. 0. C. in its plants.
We find that from May 24 to June 24, 1937, and thereafter, the
respondent refused to bargain collectively with the T. W. 0. C. as
the representative of its employees in respdct to rates of pay, wages,
hours of employment, and other conditions of employment. We also
find that the respondent's refusal to bargain collectively with the
T. W. 0. C. caused and prolonged the strike of June 4, 1937.
We further find. that the respondent, by such conduct and by the
other acts and conduct set forth above, has interfered with, restrained,
and coerced his 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 purposes of collective bar-
gaining and other mutual aid and protection as guaranteed in Section
7 of the Act.
1052 NATIONAL LABOR' RELATIONS BOARD
B. Interference, restraint, and coercion
The evidence adduced at the hearing shows that the respondent
frequently made anti-union statements to various of his employees
discrediting the T. W. O. C., coupled with attempts to restrain them
from joining the T. W. O. C. or, if they had already joined, to coerce
them into relinquishing their membership.
On May 24, 1937, the respondent told Kavazanjian that if the
T. W. O. C. sent representatives to negotiate with him, he would
"throw them out." On another occasion the respondent, while ques-
tioning Kavazanjian concerning his reasons for joining the T. W. O. C.,
characterized the T. W. O. C. representatives as a "bunch of rack-
eteers." On May 25, 1937, the respondent asked Peter Marchini
whether he was "going to join the rest of the Communists." Marchini
replying in the affirmative, the respondent warned him that if he
joined the T. W. O. C. his services would be needed no longer and
he could go home. About June 1, 1937, while speaking to Attilio
Rancone, an employee, the respondent described the T. W. O. C.
organizers as a "bunch of rats:" Further specification is unnecessary,
since the uncontradicted testimony shows that the respondent on
numerous occasions, in the presence of employees, described the
T. W. O. C. representatives and the striking employees as "Com-
munists," "irreligious Communists," "Reds," "rats," "racketeers," and
also referred to them in miscellaneous terms of abuse.
We find that the respondent, by the acts and conduct set forth
above, has interfered with, restrained, and coerced his employees
in the exercise of their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively through represent-
atives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining and other mutual aid and
protection as guaranteed in Section 7 of the Act.
C. The discharge and the refusals to reinstate
Peter Paul Kavazanjian. Kavazanjian had been in the respond-
ent's employ for about 3 years prior to his discharge on May 24,
1937. At the time of discharge he was employed as a shipping clerk
at a weekly wage of $18. His work had never been the subject of
any complaint.
Kavazanjian was one of the first of the respondent's employees to
join the T. W. O. C. and played a prominent part in its activities.
He solicited the respondent's employees for membership in the
T. W. O. C. and it was largely due to his efforts that the T. W. O. C.
secured the -membership of all the respondent's employees in the
appropriate unit.
DECISIONS AND ORDERS 1053
On May 24, 1937, Kavazanjian informed the respondent that
T. W. O. C. representatives were going to call upon the respondent
to discuss the matter of recognition of the T. W. O. C. The re-
spondeint told him that he would "throw them put" and that Kava-
zanjian should finish whatever work he was doing and go home.
The following Monday Kavazanjian returned to the plant to collect
his pay. At that time the respondent told him that he "should never
step inside the plant again." When the strike was called on June
4, 1937, Kavazanjian joined the other striking employees.
The respondent gave no explanation of the discharge on May 24
or of his order to Kavazanjian on May 25 never to step inside the
plant again. The respondent sought to explain his failure to take
Kavazanjian back to work after the ending of the strike on the
ground that Kavazanjian had started a trucking business and that
the respondent did not offer to take him back because employment
with the respondent might not have been as steady as his trucking
-business. This explanation, even if true, does not justify the re-
spondent's failure to offer Kavazanjian reemployment. Moreover,
Kavazanjian testified that he was earning an average of $8 per week
in his trucking business and that h3 wanted his job back.
We find that the respondent discharged Kavazanjian on May 24,
1937, and thereafter refused to reinstate him, because of his union
membership and activity. By discharging Kavazanjian the respond-
ent has discriminated in regard to his'hire and tenure of employment,
thereby discouraging membership in the T. W. O. C. and interfer-
ing with, restraining, and coercing his employees in the exercise of
the rights guaranteed in Section 7 of the Act.
Attilio Rancone. Rancone had been in the respondent's" employ
as a dyer for a period of about 8 years prior to the strike. It does
not appear that his work had ever been-the subject of any complaint.
Rancone joined the T. W. O. C. on April 21, 1937. Three or four
days prior to the strike Freisinger asked Rancone if he had joined
the T. W. O. C. When Rancone replied affirmatively, Freisinger
characterized the T. W. O. C. as a "bunch of rats."
On June 4, 1937, Rancone went out on strike with 'the other em-
ployees. On August 9, 1937, after the strike had ended, Rancone
applied to the respondent for reinstatement and received for a reply,
"I have no more job for you, because next time you do something
you think it over," referring to his having gone out on strike.
The respondent asserted that the reason for his failure to reinstate
Rancone was that there was not sufficient work in Rancone's depart-
ment to justify taking him back to work. The only evidence on
this point is the respondent's assertion at the hearing. No showing
was made that the plant was not operating on a full-time basis, or
1054 NATIONAL LABOR RELATIONS BOARD
that any' of the men in Rancone's department had not been taken
back or that there was no other work which Rancone could perform.
The absence of such testimony in support of the respondent's con-
tention is significant in view of the undisputed testimony showing
that the respondent refused Rancone reinstatement as a reprisal
for having gone out on strike. The only reasonable inference arising
from the evidence adduced at the hearing is that the respondent
refused to reinstate Rancone because of his union activity.
We find that the respondent refused to reinstate Rancone on
August 9, 1937, and thereafter, because of his union membership and
activity. By discharging Rancone, the respondent has discriminated
in regard to his hire and tenure of employment, thereby discouraging
membership in the T. W. 0. C. and interfering with, restraining, and
coercing his employees in the exercise of the rights, guaranteed in
Section 7 of the Act.
Carlo Romano. Romano had been in the respondent's employ for
about 10 years prior to the strike. His work, consisted in the opera-
tion of an extracting machine, at a weekly wage of $20. He had
never received any complaints regarding his work.
Romano, who was a member of the T. W. 0. C., went out on strike
with the other employees on June 4, 1937. During the course of the
strike Leo Wolf, supervisor and son-in-law of the respondent, called
on Romano and told, him to return to ,work.. Upon Romano's refusal
to do so, Wolf declared that if he did not return to work then, he
would never be able to return. Romano was not near the plant when
the strike was called, off, and hence did not know that the men had
returned to work. Shortly after the strike ended, however, he went
to the respondent's plant to apply for reinstatement, but saw a sign
on, the door of the plant stating that the respondent had a full comple-
ment,of employees and that no other persons would be hired. As a.
consequence Romano did not apply for reinstatement. Since that
time he has been on relief.
We are not satisfied on these facts that respondent refused to
reinstate Romano. However, since he ceased work as a consequence
of the respondent's unfair labor practices, we will order the re-
spondent, upon application, to offer him reinstatement to his former
or substantially equivalent position, la in the manner provided below
in the section entitled "Remedy."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
i, Biles-Coleman Lumber Co . v National Labor Relation Board , 98 F. (2d ) 18 (C. C. A.
9th, 1938 ) ; Remington Rand, Inc. v . National Labor Relations Board, 94 F. ( 2d) 862
(C. C. A. 2d, 1938), cert. den. 304 U. S. 576.
DECISIONS AND ORDERS - 1055
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead and have led to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent refused to bargain collectively
with the T. W. 0. C., we will order him to bargain collectively with
the T. W. 0. C., as the exclusive representative of his employees
at his plant at Union City, New Jersey, excluding clerical and super-
visory employees, and if understandings are reached, to embody such
understandings in a signed agreement.
As we have found that the respondent discriminatorily discharged
Peter Paul Kavazanjian, we shall order the respondent to offer him
immediate reinstatement to his former or substantially equivalent
position. Inasmuch as the respondent was not shut down during the
strike, we shall order the respondent to make him whole for the
entire period from the date of his discharge to the date on which
the respondent offers him reinstatement 2 by payment to him of a
sum equal to the amount which he normally would have earned as
wages from the date of his discharge to the date of the offer of
reinstatement, less his net earnings 3 during the said period.
We have found that the respondent discriminatorily denied re-
instatement to Elttilio Rancone. We shall order the respondent to
reinstate Rancoiie to his former or substantially equivalent position
and to make him whole for any loss of pay he may have suffered by
reason of respondent's denial of reinstatement by payment to him of
a sum equal to the amount which he normally would have. earned as
wages from the date of the denial of reinstatement to the 'date of the
offer of reinstatement, less his net earnings during said period. Such
reinstatement shall be made without prejudice to his seniority and
other rights and privileges.
We shall also order the respondent, upon application, to offer
Carlo Romano reinstatement to his former or substantially equivalent
2 Matter of American Manufacturing Company; Company Union of the American Manu-
factureng Company; the Collective Bargaining Committee of the Brooklyn Plant of the
American Manufacturing Company and Textile Workers Organizing Committee, 5 N. L.
R B 443
'By "net earnings' is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining iiork and working
elsewhere than for the respondent, which would not have been incurred but for his unlaw-
ful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company/ and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill li'oikers Union, Local 2590, 8 N. L. R. B. 440 Monies
received for work perfoimed upon Federal, State, county, municipal, or other work- relief
projects are not considered as earnings, but, as provided below in tho Order , shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said relief-work projects
1056 NATIONAL LABOR RELATIONS BOARD
position, without prejudice to his seniority and other rights and
privileges.
His reinstatement shall be effected in the following manner : All
persons hired after June 4, 1937, the date of the commencement of
the strike, and who were not in the respondent's employ at the com-
mencement of the strike, shall be dismissed, if necessary, to provide
employment for Romano. If, even after this is done, no employment
is immediately available for Romano, he shall be placed upon a
preferential list and shall be reemployed in his former or substan-
tially equivalent position as such employment becomes available
and before other persons are hired for such work. We shall also
order the respondent to make Romano whole for any loss he may
suffer by reason of a refusal of his application for reinstatement in
violation of our Order by payment to him of a sum equal to that
which he would normally have earned as wages during the period
from the date of such refusal of his application to the date of rein-
statement, less his net earnings during said period.4
Upon the basis of the foregoing findings of fact and upon the
entire record of the proceedings here, the Board makes the follow-
ing:
CONCLUSIONS OF LAW
1. Textile Workers Organizing Committee is a labor organization
within the meaning of Section 2 (5) of the Act.
2. All the respondent's employees at his plant at Union City, New
Jersey, excluding clerical and supervisory employees, constitute a
unit appropriate for the purposes of collective bargaining, within
the meaning ,of Section 9 (b) of the Act.
3. Textile Workers Organizing Committee was on April 21, 1937,
and at all times thereafter has been, the exclusive representative of
all such employees for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Textile Workers Or-
ganizing Committee as the exclusive representative of his employees
in the appropriate unit, the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section &
(5) of the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of Peter Paul Kavazanjian and Attilio Rancone and thereby
discouraging membership in the Textile Workers Organizing Com-
4Matter o f Oregon Worsted Company and United Textile Workers o f America, 3 N L.
R. B. 36 , order enforced in Oregon Worsted Co v National Labor Relations Board, 96 F
(2d) 193 (C. C. A 9th, 1938) ; Matter of B,les-Coleman Lumber Company and Puget
Sound District Council of Lumber and Sawmill Workers , 4 N. L R. B . 679, order enforced
in Btiles-Coleman Lumber Co v . National Labor Relations Board, 98 F. (2d ) 18 (C C. A.
9th, 1938).
DECISIONS AND ORDERS 1057
mittee, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing his employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices.
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
8. The respondent has not engaged in unfair labor practices within
the meaning of Section' 8 (3) of the Act with respect to Carlo
Romano.
ORDER
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Sigmund Freisinger, doing business under the name and
style of North River Yarn Dyers, Union City, New Jersey, and his
agents, successors, and assigns , shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Textile Workers Organ-
izing Committee as the exclusive representative of all his employees
at his plant at Union City, New Jersey, except clerical and super-
visory employees;
(b) Discouraging membership in Textile Workers Organizing Com-
mittee or any other labor organization of his employees, by dis-,
charging or refusing to reinstate any of his employees, or in, any
other manner discriminating in regard to their hire and tenure of
employment or any term or condition of their employment , because
of their membership or activity in the Textile Workers Organizing
Committee or any other labor organization;
(c) In any other manner interfering with, restraining , or coercing
his 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, or to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of this Act:
(a) Upon request, bargain collectively with the Textile Workers
Organizing Committee as the exclusive representative of all his em-
ployees- at his plant at Union City, New Jersey, except clerical and
supervisory employees, in respect to rates of pay, wages, hours' of
1058 NATIONAL LABOR-RELATIONS BOARD
work, and other conditions of employment, and if an understanding
is reached on any; such matters, embody such understanding in a
written signed agreement;
(b) Offer, to Peter Paul Kavazanjian and Attilio Rancone full
and immediate reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority and other rights
and privileges;
(c) Upon application, offer to Carlo Romano immediate and full
reinstatement to his former or substantially equivalent position,
without prejudice to his seniority and other rights and privileges,
in the manner set forth in the section eiititled "Remedy" above,
placing him, if employment is not immediately available, upon a
preferential list in the manner set forth in said section, and there-
after , in said manner, offer him employment as it becomes available;
(d) Make whole Peter Paul Kavazanjian and Attilio Rancone
for any 'losses of pay they have suffered by reason of the respond-
ent's discrimination against them by payment to each of them of a
'sum of money equal to that which he would normally have earned
:as wages from date of the respondent's discrimination against him
,to the date of such offer of reinstatement, less his net earnings dur-
'ing said period; deducting, however, from the amount otherwise due
`t each of the said employees .'monies received by said employees
during said period for work performed upon Federal, State, county,
municipal, or other work-relief projects and pay over the amounts
so deducted to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which sup-
plied the funds for said work-relief projects;
(e)=Make whole Carlo Romano for any loss of pay he may suffer
by reason of any refusal of his application for reinstatement in accord-
ance with paragraph 2 (c) above, by payment to him of a sum of money
equal to that which, he would normally have earned as wages during
the period from the date of any such refusal of his application to the
date of reinstatement, less his-net earnings during said period; deduct-
ing, however, from the amount otherwise due-to him monies received
by him during said period for work performed upon Federal, State,
county, municipal,' or other work-relief projects and pay over the
amount so deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(f) Immediately post notices in conspicuous places in the respond-
ent's plant at Union City, New Jersey, and maintain such notices
for a period of at least sixty (60) consecutive clays, stating that
respondent will cease and desist in the manner set forth in 1 (a),
(b), and (c) and he will,take the affirmative action set forth in 2 (a),
,(b), (c), (d), and (e) of this Order;
DECISIONS AND ORDERS 1059
(g) 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.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (3) of the
Act in regard to Carlo Romano.