Yale Underwear Co.

National Labor Relations Board - Board Decisions

Apr 11, 1936

1 N.L.R.B. 539 (N.L.R.B. 1936)

In the Matter Of ISADOR PANITZ, DOING BUSINESS UNDER THE TRADE
NAME AND STYLE OF YALE UNDERWEAR COMPANY and AMALGAMATED
CLOTHING WORKERS OF AMERICA, LOCAL No. 127
Case No. C-39-Decided April 11, 1936
Underwear Industry Interference , Restraint or Coercion : expressed opposi-
tion to labor organization ; persuasion of employees to resign from union-
D2scii mination : discharge-Retinstatement Ordered-Back Pay: disallowed.
Mr. Ernest A. Gross for the Board.
Mr. Isador Panitz and Mr. Victor Burnham for respondent.
Mr. Louis L. Jaffe, of counsel to the Board.
DECISION
STATEMENT OF CASE
Charges having been duly made by the Amalgamated Clothing
Workers, Local No. 127, hereinafter referred to as the Union, Bennet
F. Schauffier, Regional Director for the Fifth Region, issued a com-
plaint dated December 18, 1935 against Isador Panitz, doing business
under the trade name of Yale Underwear Company, hereinafter re-
ferred to as the respondent. The complaint and notice of hearing
thereon were duly served upon respondent on December 18, 1935 in
accordance with Article V, Section 1, of National Labor Relations
Board Rules and Regulations-Series 1. The complaint alleged :
That the respondent discharged and refused to reinstate Ellsworth
Kattenhorn and Ernest Kattenhorn for the reason that they joined
and assisted the Union and engaged in concerted activities with other
employees in the Baltimore plant for the purpose of collective bar-
gaining and other mutual aid and protection; and that at various
times since July 5, 1935 the respondent did, through his agents,
Victor Burnham, Superintendent, and Mrs. Seager, Forelady, urge,
persuade, and warn his production employees to resign or refrain
from joining the Union, threatening loss of work, layoff, and dis-
charge if they failed to do so; that by these activities the respondent
did interfere with, restrain and coerce and is interfering with, re-
straining and coercing his employees in the exercise of the rights
guaranteed in Section 7 of the National Labor Relations Act, and
did discriminate and is discriminating in regard to the hire, tenure
of employment, and terms and conditions of employment of the
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540 NATIONAL LABOR RELATIONS BOARD
aforesaid persons and each of them, and did discourage and is dis-
couraging membership in the Union, and by said acts did engage in
and is engaging in unfair labor practices affecting commerce within
the meaning of Section 8, subdivisions (1) and (3) and Section 2,
subdivisions (6) and (7) of the National Labor Relations Act, ap-
proved July 5, 1935.
Pursuant to the notice of hearing, A. Howard Myers, Trial Ex-
aminer, as agent of the Board, conducted a hearing on December 30,
1935, at Baltimore, Maryland. The respondent participated in the
hearing. Full opportunity to be heard, to cross-examine witnesses
and to produce evidence bearing upon the issues was afforded to all
parties.
The Trial Examiner filed an intermediate report, finding and
concluding that the respondent had committed the unfair labor prac-
tices as charged in the complaint and recommending that Ernest
and Ellsworth Kattenhorn be reinstated. The respondent filed a
written brief taking exception to the report, on the grounds that the
activities of the respondent not being interstate commerce, the Act
is not applicable to him, and that the evidence does not support
the findings. On February 11, 1936, pursuant to his request, counsel
for the respondent, orally argued the case before the Board in
Washington.
Upon the record as thus made, the stenographic report of the
hearing, and all the evidence, including oral testimony, documentary
and other evidence offered and received at the hearing, the Board
makes the following :
FINDINGS OF FACT
1. ISADOR PANITZ, DOING BUSINESS AS THE YALE UNDERWEAR COMPANY
The respondent is the proprietor of the Yale Underwear Com-
pany, a proprietorship, located in Baltimore, Maryland. The Yale
Underwear Company manufactures running pants, shirts, and union
suits for men and boys. It secures all its cotton goods from out of
the state. It sells practically all of its product through a sales
agency in New York City, which distributes the goods throughout
the country.
We find that the operations of the respondent constitute a continu-
ous flow of trade, traffic and commerce among the several States.
H. THE ACTIVITY OF THE UNION
In April, 1934, the respondent had 400 employees. The Union, a
labor organization, organized the cutting department, a group of
about 22 persons-all of whom joined the Union at this time-and
DECISIONS AND ORDERS 541
called them out on strike. This was part of a city-wide strike of
underwear workers called by the Union. The strike lasted ten days.
During that time some strikebreakers were employed in the cutting
department. The strike was settled by agreements entered into be-
tween "the employers and the employees", a Union official executing
the contract for the employees, providing for reinstatement and cer-
tain wage increases. All 22 persons in the cutting department re-
turned to the plant. The strikebreakers were dismissed upon the
demand of the Union. Thereafter the respondent's business de-
creased and it wished to lay off some men. It consulted the Union.
The Union insisted on a sharing of the work among shifts. The
force, at first, was divided into two shifts; later, as work fell off, into
three.
III. DISCHARGE OF THE KATTENHORNS
By July, 1935 the respondent was employing only about 5 persons
in the cutting department. On September 4th the Kattenhorns were
told that work was so slack that each of them could- work only in
alternate weeks. A few days later they were told that they were not
to return to work at all. The respondent claims that they were dis-
charged because of their incompetence and negligence; it is alleged
that their Union membership was the cause.
Ellsworth Kattenhorn. Ellsworth Kattenhorn began to work for
the respondent in 1928. He worked always in the cutting depart-
ment. He began at $6.50 per week and by slow and frequent raises
reached $18 per week. His last raise was in April, 1934 as a result
of the strike settlement. About two weeks before they were laid off,
both Kattenhorns were promised a raise when business improved.
Ellsworth has performed nearly all of the operations in the cutting
room. He has been favored in the distribution of work. After the
strike he received more work than most others in the cutting depart-
ment. In July, 1935, when respondent attempted to explain to the
Union the lay off of certain men who did cutting only, he pointed
out that Ellsworth and Ernest were all around workers who could
do every operation in the cutting department and that they were more
useful to him.
Ellsworth (who is 21 years old) had been reprimanded on occa-
sion for careless workmanship and for improper conduct. The Union
had once offered to discipline him but the respondent said, "He did
not want it, he was a good boy, and all he wanted was for us (the
Union) to tell him not to do it again." Ellsworth was, apparently,
quick-tempered at times and insolent. The respondent now recalls
these occasions but cannot rely seriously upon them, since they hap-
pened long before the discharge and were obviously forgiven. More
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542 NATIONAL LABOR RELATIONS BOARD
serious charges are that he failed often to keep a careful check of
inventory under his supervision, that he cut samples improperly, and
that he was overlong at times on certain operations. Burnham, the
superintendent, stated that Ellsworth had often been guilty of these
faults, but that the most recent instances of negligence he discovered
only after the boys were "off completely."
° Ernest Kattenhorn. Ernest had worked off and on for the respond-
ent since 1924. He had been employed steadily since 1932. He
started working at $7 per week and was making $20 when he was
laid off in September. It would appear that his last raise to $20 was
directly after and as a result of the strike. He learned nearly all
of the operations in the cutting room-marking, spreading, and
finally, cutting. The respondent's complaint as to Ernest is that he
mis-marked goods from time to time, that he talked about the Union
on the job, and that on pay days he urged, during work hours, the
men to pay their Union dues. As in Ellsworth's case, these mistakes
and faults had occurred from time to time in the past but the most
recent instance of mis-marking was not discovered by Burnham until
after the boys were laid off.
In sum, both Kattenhorns had been treated and considered as all
around workers. Apparently their past faults did not count heavily
against them with the respondent, because as late as July, 1935 he
had told the Union how valuable they were and just two weeks before
the lay-off, he had promised them a raise. The most recent errors of
workmanship were not discovered until after their release. As a
matter of fact, the reason given for the lay-off was lack of work.
The Kattenhorns were the only surviving Union members of the
original 22 in the cutting department. Ernest was an active mem-
ber; he talked about the Union on the job; he urged others to pay
their dues. Ellsworth was not an active member. At one time he
had attempted to give the impression that he was no longer a mem-
her. He had been told by Burnham that, "If you will drop the
Union it will be better for you". About four months after the strike
Ernest, too, was told that he would get steady work if he dropped the
Union. He was reprimanded, on occasion, for talking about the
Union during working hours, though conversation at work was cus-
tomary. The respondent felt some resentment against the Union,
because it required him to stagger his help and would not freely per-
mit lay-off s. Apparently, he considered himself called upon, by rea-
son of the strike settlement, to consult with the Union on these mat-
ters. "I could not lay this one off and I could not do that, and I
came to the conclusion I had made a bad bargain but had to make
the best of it." After laying off the Kattenhorns, he hired non-
Union men and at present, among the five to seven in the cutting
DECISIONS AND ORDERS 543
department, there are no Union men. The respondent has thus rid
himself of his bargain. He has taken advantage of the fluctuating
and uncertain circumstances of his business to be free completely of
Union men, so that no longer will he find it necessary to deal with
or consult with the Union.
We find that respondent has discriminated with respect to hire and
tenure of employment against Ellsworth and Ernest Kattenhorn for
the purpose of discouraging membership in the Union, and that by
such acts, respondent has interfered with, restrained and coerced its
employees in the exercise of the rights of self-organization guaran-
teed in Section 7 of the Act. We find, further, that such acts tend
to labor disputes burdening and obstructing commerce and the free
flow thereof.
Under the circumstances of this case we believe that it will be
appropriate to require respondent to offer employment to Ellsworth
and Ernest Kattenhorn but not to require payment of what wages
may have been lost by reason of their discharge.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact the Board makes
the following conclusions of law :
1. Amalgamated Clothing Workers of America, Local No. 127, is
a labor organization, within the meaning of Section 2, subdivision (5).
2. By its discharge of Ellsworth and Ernest Kattenhorn, and each
of them, for the reason that they and each of them joined and assisted
the Union, the respondent did interfere with, restrain and coerce,
and is interfering with, restraining and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, and by all
of said acts and each of them did thereby engage in and is thereby
engaging in unfair labor practices, within the meaning of Section 8,
subdivision (1) of the Act.
3. By its discharge of the persons aforesaid, as set forth in para-
graph 2 hereof, and each of them, the respondent did discriminate
and is discriminating in regard to the hire and tenure of employ-
ment of said persons and each of them, and did thus discourage and
is thus discouraging membership in the Union, and by all of said
acts and each of them did thereby engage in and is thereby engaging
in unfair labor practices, within the meaning of Section 8, sub-
division (3) of said Act.
4. The unfair labor practices in which the respondent has engaged
and is engaging, as aforementioned, are unfair labor practices affect-
ing commerce, within the meaning of Section 2, subdivisions (6) and
(7) of said Act.
544 NATIONAL LABOR RELATIONS BOARD
ORDER
On the basis of the findings and conclusions of law, and pursuant
to Section 10, subdivision (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders the respondent,
Isadore Panitz, doing business as Yale Underwear Company :
1. Cease and desist from in any manner interfering with, restrain-
ing or coercing their 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 bargain-
ing or other mutual aid or protection, as guaranteed in Section 7
of the National Labor Relations Act;
2. Cease and desist from discouraging membership in the Union
or any other labor organization of its employees, by discrimination
in regard to hire or tenure of employment or any term or condition
of employment;
3. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Ellsworth and Ernest Kattenhorn employment in the
respective positions formerly held by them; and
(b) Post immediately notices to its employees in conspicuous
places in its shop stating (1) that the respondent will not discharge
or in any manner discriminate against members of, or those desiring
to become members of, Amalgamated Clothing Workers of America,
Local No. 127, or persons assisting said organization or otherwise
engaging in Union activity, and (2) that such notices will remain
posted for a period of at least thirty (30) consecutive days from the
date of posting.