Somerville Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 17, 1937

4 N.L.R.B. 596 (N.L.R.B. 1937)

In the Matter of BENJAMIN FAINBLATT and MARJORIE FAINBLATT, IN-
DIVIDUALS, DOING BUSINESS UNDER THE FIRM NAMES AND STYLES OF SOM-
ERVILLE MANUFACTURING COMPANY and SOMERSET MANUFACTURING
COMPANY and INTERNATIONAL LADIES' GARMENT WORKERS' UNION,
LOCAL No. 149
Case No. C-53
Parties: question as to parties to be joined as respondents ; changes in nomi-
nal ownership of plant ; real as well as nominal owner made party to action-
Interference , Restraint or Coercion : reports on union members and activities-
Representatives : designation of representatives need not be by election-Col-
lective Bargaining : lapse of time since original order ; lack of evidence as to
present situation ; withdrawal of order to bargain collectively.
Mr. David A . Moscovitz , for the Board.
Mr. Leon Gerofsky, Mr. Joseph Halpern, and Mr. T. Girard Whar-
ton, of Somerville , New Jersey, for the respondents.
Mr. Abraham L. Kaminstein , of counsel to the Board.
SUPPLEMENTAL DECISION
AND
ORDER
December 17, 1937
On June 3, 1936, after a hearing, the National Labor Relations
Board, herein called the Board, issued a Decision in this case 1 in
which it found that Benjamin Fainblatt and Marjorie Fainblatt,2 in-
dividuals doing business under the firm names and styles of Somer-
ville Manufacturing Company s and Somerset Manufacturing Com-
pany, both of Somerville, New Jersey, herein called the respondents,
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 National Labor Relations Act, 49 Stat. 449. The unfair labor
practices so found consisted in discrimination against eight of the
respondents' employees in regard to hire and tenure of employment,
thereby discouraging membership in International Ladies' Garment
1 1 N. L R B 864.
2 The name of the respondents has been variously spelled as Feinblatt , Fainblott, and
Fainblatt . Marjorie has sometimes been referred to as Margaret , or Margorie.
8 The name . Somerville Manufacturing Company, was discontinued on February 15, 1935.
596
DECISIONS AND ORDERS 597
Workers' Union, Local No. 149, herein called Local No. 149, and in
the refusal to bargain' collectively with Local No. 149. The Board
ordered the respondents to cease and desist from such actions; to rein-
state to their former positions, with back pay, the employees found
to have been discriminated against; to offer employment to all em-
ployees of the tailoring department who had gone out on strike as a
result of the unfair labor practices, where the positions held by such
employees on September 18, 1935, the date of the strike, were held by
persons subsequently employed; to place other striking employees on
a preferential seniority list, to be offered employment when their labor
was needed; and, upon request, to bargain collectively with Local
No. 149.
Pursuant to Section 10 (e) of the Act, the Board, on June 17, 1937,
petitioned the United States Circuit Court of Appeals for the Third
Circuit, herein called the Court, for the enforcement of this order.
On October 4, 1937, the respondents filed a petition with the Court
alleging in substance that they had failed to call witnesses and intro-
duce any evidence at the former hearing because they believed that
the National Labor Relations Act was unconstitutional, or if con-
stitutional, not applicable to the respondents; that the sole employer
of the persons named in the complaint was Marjorie Fainblatt, so
that the respondent Benjamin Fainblatt was not a proper or neces-
sary party; that on January 2, 1937, Marjorie Fainblatt sold and
conveyed the Somerset Manufacturing Company to Benjamin Fain-
blatt; that the number of employees had increased from 58 at the
time of the Board's hearing, to 200; that no election had ever been
held at the plant for the purpose of having the employees select their
representatives; that attempts to settle differences between the
respondents and Local No. 149 had proven futile; and that since the
date of the strike a number of the employees had returned to work.
The petition asked leave to adduce additional evidence in support of
the allegations set forth therein. On October 15, 1937, the Court
ordered that the respondents have leave to adduce additional evi-
deuce; and that such additional evidence be taken before the Board,
its member, agent or agency, together with any findings thereon, and
be made a part of the transcript of the record in this cause.
Pursuant to notice, duly served upon the parties, a hearing was held
in New York City on October 22, 1937, before Robert M. Gates, the
Trial Examiner duly designated by the Board. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues' was afforded to the parties. At
the outset of the hearing, the Board's attorney objected to the reopen-
ing of the proceeding, and to the granting of the petition for leave
to adduce additional evidence. The Board called no witnesses at this
hearing, and merely cross-examined witnesses for the respondents.
598 NATIONAL LABOR RELATIONS BOARD
The rulings of the Trial Examiner on motions and on objections to
the introduction of evidence are hereby affirmed. The objection of
the respondents to questioning on the subject of the details of the,
transfer of Somerset Manufacturing Company in January, 1937, is
hereby denied. In view of the order to be made, we do not need to
consider other objections upon which no rulings were made.
Upon the entire record in the case the Board makes the following
supplementary :
FINDINGS OF FACT
At the conclusion of the second hearing, the respondents moved to
dismiss the complaint on three specific grounds : namely, that there
was no testimony that Harry A. Posner represented the employees, or
that an election was ever held in which he had been selected; that
the respondents were not engaged in interstate commerce; and that
the charges ought to be dismissed against Benjamin Fainblatt be-
cause, at the time the unfair labor practices are alleged to have
occurred, he was nothing more than an employee of Somerset Manu-
facturing Company, herein called Somerset.. The question of inter-
state commerce has been discussed in the first opinion, and the testi-
mony at the second hearing adds little to that already in the record.
We shall review the other objections and then consider the additional
evidence bearing upon the discriminatory discharges and other acts
of interference with self-organization.
In the petition for leave to adduce additional evidence, the re-
spondents insisted that Benjamin Fainblatt was not a proper or
necessary party. The testimony of Benjamin Fainblatt at the first
hearing in regard to the ownership of Somerset was as follows:
Q. In what capacity are you associated with these two com-
panies?
A. I am the owner.
Q. Complete owner?
A. Complete owner.
Q. Are you in charge of operations?
A. I am in charge of my own factory
Q. Who is Marjorie Fainblatt?
A. My daughter.
Q. Does she have any ownership interest ?
A. No.
Q. She is employed by you?
A. Well, she is and she is not.
Q. In what way is she not?
A. Just merely she is helping me as a daughter a father.
DECISIONS AND ORDERS 599
Q. Then is not
A. Not as an employee.
Q. Marjorie Fainblatt is registered here in Somerville under
a trade name also?
A. She has registered under the name of Somerset Manufac-
turing Company.
Q. She is registered here under that name?
A. Yes.
Q. And operates with the Lee Sportswear Company as a
partner; is that it?
A. She is a partner in that firm there.
Q. So that although she is a partner of Lee Sportswear, she
is here in your plant working with you?
A. No, sir; she is not in my plant, she only comes in.
Q. But she is a registered owner with your company?
A. She is a registered owner but I am working myself there.
Q. You registered-you testified before that you were the
complete owner.
A. Yes.
Q. How is she registered here as a part owner?
A. In place, not to conflict with the what you call them-
the code authorities-so as not to have any trouble-so we went
to work and I made Somerset and I gave her the permission
to
Q. Then her registration in fact means nothing?
A. No; positively nothing.
At the second hearing, Marjorie Fainblatt testified:
Q. Were you the sole owner of that business? Known as
the Somerset Manufacturing Company?
A. I was.
* * * * * * *
Q. Did Benjamin Fainblatt have any association with the
Somerset Manufacturing Company?
A. Only as my manager.
Q. He was not the owner of the Somerset?
A. He was not.
* * * * * * *
Q. Are you the owner of the Somerset Manufacturing Com-
pany today?
A. No, I am not.
Q. Have you disposed of your interest in the Somerset?
A. I have.
Q. And when did that take place?
67573-38-vol. iv-39
600 NATIONAL LABOR RELATIONS BOARD
A. At the beginning of the year.
Q. Do you remember the month?
A. January.
Q. Who became the owner?
A. Benjamin Fainblatt.
Marjorie testified further that she had sold Somerset to her father
on January 1, 1937, in return for his assumption of the liabilities
of that company. These liabilities included a chattel mortgage on
the machinery. This mortgage is held by Lee Sportswear Company,
a partnership composed of Fainblatt's children, Marjorie, Lee and
Irving. She also testified that as yet her father had made no pay-
ments on any of the liabilities, and that she still had a power of
attorney, "just in case anything happens to Benjamin".
Upon all the testimony, we find that Benjamin Fainblatt has been,
and is now, the real owner of Somerset, and that Marjorie was merely
a nominal registered owner. Because of the alleged change in
nominal ownership, the Board will amend its order by making it
applicable to Benjamin Fainblatt and Marjorie Fainblatt, individ-
uals doing business under the firm name and style of Somerset'
Manufacturing Company, and to their successors and assigns.
The respondents consistently advanced the claim that Local No.
149 had never been designated by the employees, inasmuch as no
election to select a bargaining representative had ever been held by
the employees. Under Section 9 (a) of the Act, employees need not
hold an election to determine their representatives for purposes of
collective bargaining. The only requirement is that such representa-
tives be designated or selected by a majority of the employees in an
appropriate unit. On the basis of the evidence submitted at the first
hearing, the Board found that Local No. 149 had been so designated.
No evidence submitted at the second hearing can be said to contradict
this. Nor was any evidence introduced to contravert the Board's
previous finding that the respondents on and after September 6,
1935, refused to bargain collectively with Local No. 149 as such
representative of its employees.
The Board therefore reiterates what it said in regard to the viola-
tion of Section 8 (5) of the Act. That violation is not affected by any
subsequent change in the situation. However, testimony that the
number of permanent employees in the plant has risen from 59 to
approximately 200 is uncontradicted. Two years have now elapsed
since the respondents' first refusal to bargain collectively, which pre-
cipitated the strike. The Board has no evidence before it as to the
present membership in Local No. 149 among the greatly increased
force now employed. In view of these circumstances, the Board
will amend its order by striking out that part which requires the
DECISIONS AND ORDERS 601
respondents to bargain collectively with Local No. 149. This does
not mean, of course, that-the respondents are relieved of their obliga-
tions under Section 8 (5) of the Act, or that if the Union now or
subsequently is designated by a majority of the employees in an
appropriate unit, the respondents may refuse to bargain collectively
with it.
With respect to the discriminatory discharges and the various acts
of interference found by the Board in its first decision, neither the
petition for leave to adduce evidence, nor the motion to dismiss, chal-
lenges the findings of the Board as to these matters. In fact the
evidence brought forward by the respondents at the second hearing
fully corroborates the conclusions previously reached by the Board.
Thus the new testimony discloses that the discharges did not take
place because of poor work; that work was not slack at that time;
that new workers have replaced the old employees and that the re-
spondents have made no attempt to recall the discharged employees.
The other measures taken by the respondents to thwart the organi-
zation of their employees, and the methods of coercion they employed,
are now revealed by the respondents' own witnesses. In general these
witnesses took the position that they knew little or nothing about the
activities of Local No. 149. Thus on direct examination, Ruth Evans,
forelady, denied that she had ever spoken to Benjamin Fainblatt,
Orshan Ruby, supervisor of production, or anyone else, about Local
No. 149, or that she had ever attended a meeting at which it was
discussed. On cross-examination she was confronted with the testi-
mony of Ruby, that he had spoken to her several times about Local
No. 149, and that she had told him from time to time that the shop
was being organized. Mrs. Evans then said that she did not recall
whether Ruby had ever spoken to her.
That the respondents must have known the names of those active
in Local No. 149, before the strike, is clear from other evidence. The
testimony of Ruby, which follows, is especially instructive in view
of the purported lack of knowledge of the activities of Local No.
149:
Q. Who Is this one girl that would tell you about the Union?
A. I think her name was Vermilyea.
Q. Vermilyea what?
A. I don't know her second name.
Q. Is she still working for you?
A. No, she is not.
Q. Did she keep you advised of all the things that the
Union boys and the Union girls were doing?
A. That is right.
Q. Would she tell you what would go on at the meetings?
602 NATIONAL LABOR RELATIONS BOARD
A. She would from time to time. I don't know whether
she did tell me the truth or not, but she used to come and
tell me.
Q. Did she tell you that all during the period of time up
until the strike took place?
A. Well, I would not say. For about a week or so.
Q. Did you learn from her that Fay Katz was active in
the Union?
A. I have not learned from her anything of the kind.
Q. Now, you don 't want to contradict yourself , do you?
A. I do not.
Q. Now, you told me that she told you all the things about
the Union.
A. That does not mean to say I have learned anything from
her. I have heard from her , that is about all.
Q. Heard what , about Fay Katz?-
A. About Fay Katz, what is the difference Fay Katz or any
of the other girls.
Q. No difference.
A. She used to come and tell me, this one and the other.
Q. She would tell you about particular individuals?
A. She would.
Q. You don't deny she told you about Fay Katz?
A. I do not.
Q. You don't deny she told you about these other girls
Mr. Gerofsky asked you?
A. She did.
Q. She did?
A. Yes.
Thus the testimony brought forward by the respondents at the
second hearing, far from establishing a defense , merely serves to
further implicate the agents and supervisory officials of the respond-
ents. The respondents have shown no sign of complying with the
provisions of the Act, but, on the contrary , have more clearly
evidenced their desire to evade their responsibilities under the Act.
On this state of the record, we see no reason for modifying the order
of the Board, dated June 3, 1936 , with the exception of those changes
noted above , and we hereby reaffirm that order.
ORDER
On the basis of the foregoing findings and supplementary findings of
fact and conclusions of law and pursuant to Section 10 (c) and (e),
the National Labor Relations Board hereby orders that the respond-
ents, Benjamin Fainblatt and Marjorie Fainblatt, individuals doing
DECISIONS AND ORDERS 603
business under the firm name and style of Somerset Manufacturing
Company, their successors and assigns shall :
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing their
employees in the exercise of their right to join and assist Local
No. 149 of the International Ladies' Garment Workers' Union or
any other labor organization;
(b) Discouraging membership in Local No. 149 of the Inter-
national Ladies' Garment Workers' Union or in any other labor
organization of their employees by discharging, refusing to rein-
state, or otherwise discriminating in regard to tenure or terms of
employment against employees who have joined or assisted Local
No. 149 or any other labor organization of their employees.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Elizabeth Schoka, Lorraine Heitz, Ethel Rice, Ange-
lina Matteis, Mary Gecik, Fay Katz, Anna Santoro and Theresa
Yemma immediate and full reinstatement to their former positions
without prejudice to any rights and privileges previously enjoyed;
(b) Offer employment to all employees of the tailoring department
who went on strike on September 18, 1935, or within one week there-
after where positions held by such employees on September 18, 1935,
are now held by persons who were not employees of the respondents
on September 18, 1935, but were employed subsequently thereto, and
place all other employees who struck on September 18, 1935, or within
the following week on a preferential list to be offered employment
according to their seniority in respondents' employment, as and when
their labor is needed;
(c) Make whole said Elizabeth Schoka, Lorraine Heitz, Ethel Rice,
Angelina Matteis, Mary Gecik, Fay Katz, Anna Santoro and Theresa
Yemma for any loss of pay they have suffered by reason of their dis-
charge by payment to each of them, respectively, of a sum of money
equal to that which she would normally have earned as wages during
the period from the date of her discharge to the date of such offer of
reinstatement, less earnings from other employment during such
period ;
(d) Post notices in conspicuous places in the plant stating (1) that
the respondents will cease and desist in the manner aforesaid, and (2)
that such notices will remain posted for a period of thirty (30)
consecutive days.