Arcadia Hosiery Company

National Labor Relations Board - Board Decisions

Apr 27, 1939

12 N.L.R.B. 467 (N.L.R.B. 1939)

In the Matter of DAVID SUBIN AND BENJAMIN SUBIN, DOING BUSI-
NESS UNDER THE TRADE NAME AND STYLE OF ARCADIA HOSIERY COM-
PANY and AMERICAN FEDERATION OF HOSIERY WORKERS, BRANCH
No. 67
Case No. C-675.-Decided April 27,1939
Hosiery Manufacturing Industry-Interference, Restraint , and Coercion: ex-
pressed opposition to outside labor organization ; threat to close plant and dis-
charge employees-Company-Dominated Union: domination of and interference
with formation and administration ; support ; suggesting formation ; respond-
ents ordered to withdraw recognition from and disestablish as agency for
collective bargaining-Discrimination : discharges ; for union membership and
activity ; charges of , not sustained as to one employee-Reinstatement Ordered :
discharged employees-Back Pay : awarded.
Mr. Bernard Bralove, for the Board.
Wessel, Bennett & Weiss, by Mr. Charles J. Weiss, of Philadelphia,
Pa., for the respondents.
Mr. Isadore Katz, of Philadelphia, Pa., for the Hosiery Workers.
Mr. Thomas F. Gain, of Philadelphia, Pa., for the Shop Com-
mittee.
Mr. Victor A. Pascal, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by American Fed-
eration of Hosiery Workers, Branch No. 67, herein called the Ho-
siery Workers, the National Labor Relations Board, herein called the
Board, by Stanley W. Root, Regional Director for the Fourth Re-
gion (Philadelphia, Pennsylvania), issued its complaint dated April
1, 1938, against David Subin and Benjamin Subin, Lansdale, Penn-
sylvania, partners doing business under the trade name and style of
Arcadia Hosiery Company, herein called the respondents, alleging
that the respondents had engaged in and were engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1), (2), and (3), and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. The complaint
12 N. L. R. B., No. 56.
169134-39-vol. 12-31 467
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and accompanying notice of hearing were duly served upon the re-
spondents and the Hosiery Workers.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondents dominated and interfered with the
formation of the Shop Committee, a labor organization, and con-
tributed support to it; discharged 12 employees because they had
joined and assisted the Hosiery Workers; and, by these and other
acts, interfered with, restrained, and coerced their employees in the
exercise of the rights guaranteed in Section 7 of the Act. There-
after, the respondents filed an answer denying the alleged unfair
labor practices.
Pursuant to the notice, a hearing was held on April 11, 12, 13, 14,
19, and 20, 1938, at Norristown, Pennsylvania, before William P.
Webb, the Trial Examiner duly designated by the Board. At the
commencement of the hearing, the Trial Examiner granted the Shop
Committee's motion to intervene. The Board, the respondents, the
Hosiery Workers, and the Shop Committee were represented by
counsel and participated in the hearing. Full opportunity to be
heard , to examine and cross -examine witnesses , and to introduce evi-
dence bearing on the issues was afforded all parties. At the close
of the Board's case, the Trial Examiner granted the motion made by
its counsel to dismiss the complaint as to Catherine Bomboy, one of
the employees referred to in the complaint as having been discrim-
inatorily discharged. During the course of the hearing, the Trial
Examiner made several rulings on other motions and on objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
On June 9, 1938, the Trial Examiner filed his Intermediate Report,
copies of which were served upon the parties, in which he found
that the respondents had engaged in and were engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1), (2), and (3), and Section 2 (6) and (7) of the Act and recom-
mended that the respondents cease and desist from their unfair labor
practices and take certain affirmative action remedial of their effect.
Exceptions to the Intermediate Report were filed by the Shop
Committee on June 17, and by the respondents on June 28, 1938.
Pursuant to notice , a hearing for the purpose of oral argument was
held before the Board at Washington, D. C., on July 28, 1938. The
respondents , the Hosiery Workers, and the Shop Committee par-
ticipated in the argument and also filed briefs , which the Board has
considered . The Board has reviewed the exceptions to the Interme-
diate Report and, in so far as they are inconsistent with the findings,
conclusions , and order hereinafter made, finds them to be without
merit.
DAVID SUBIN AND BENJAMIN SUBIN 469
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
David Subin and Benjamin Subin, partners doing business under
the trade name and style of Arcadia Hosiery Company, are engaged
in the manufacture and sale of full-fashioned hosiery at their plant
and principal place of business at Lansdale, Pennsylvania. For use
in their manufacturing operations the respondents purchase silk and
manufactured machine parts. During 1937, the value of the mate-
rials purchased by the respondents, 88 per cent of which were secured
from sources outside the Commonwealth of Pennsylvania, totaled
$250,000. During the same period, the value of the respondents' fin-
ished products totaled $600,000. Seventy-five per cent of such prod-
ucts were shipped to destinations outside the Commonwealth of Penn-
sylvania. At the hearing, the respondents stipulated that they are
"engaged in interstate commerce within the meaning of the National
Labor Relations Act."
At their Lansdale plant, the respondents employ approximately
225 persons.
II. THE ORGANIZATIONS INVOLVED
American Federation of Hosiery Workers, Branch No. 67, is a
labor organization affiliated with the Committee for Industrial Or-
ganization. It admits to membership employees in hosiery plants in
Lansdale, Pennsylvania.
The Shop Committee is an unaffiliated labor organization claiming
to represent all the respondents' employees for the purposes of col-
lective bargaining.
III. THE UNFAIR LABOR PRACTICES
A. Discouragement of membership in the Hosiery Workers
About the middle of July 1937, Alexander Kellenbenz, a business
representative of the American Federation of Hosiery Workers,
started to organize the respondents' employees. Within about 5 or 6
weeks a substantial number had joined. Kellenbenz telephoned the
respondents several times in an effort to arrange a meeting for the
purpose of negotiating a contract, but they refused to meet him.
David Subin testified that the respondents, having determined to
liquidate their business, had decided not to meet with the Hosiery
Workers. The chief of police of Lansdale, however, succeeded in
arranging a meeting which was held on August 9, 1937, and attended
by David Subin, Kellenbenz, and others.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the commencement of the meeting, the Hosiery Workers' repre-
sentatives submitted a proposed contract to David Subin, but he
refused to read or discuss it. Later, stating that the respondents
were going out of business, he handed them a notice on the letterhead
of the respondents which read as follows :
AUGUST 9, 1937.
TO THE EMPLOYEES OF ARCADIA HOSIERY COMPANY :
Due to the high competitive condition in the Full Fashioned
Hosiery industry, it has become impractical for this mill to
operate.
In view of this we have decided to liquidate and discontinue
manufacturing Full Fashioned Hosiery. We, therefore, urge all
of our employees to try and find employment elsewhere as soon
as practical.
We will furnish references to help facilitate our employees
finding other positions.
(Signed) D. L. SuRIN.
ARCADIA HOSIERY COMPANY.
The Hosiery Workers' representatives attempted to persuade Subin
not to post the notice. Eventually, Subin agreed to withhold posting
it, but stated that he would do so if the Hosiery Workers caused him
"any trouble." As he was adamant in his refusal to discuss the con-
tract, the meeting was terminated.
Thereafter, Kellenbenz telephoned to the respondents several times
and, about a month after their first meeting, Kellenbenz and David
Subin met again. In the course of a discussion of lay-offs which
might be occasioned by the sale of certain knitting machines, Subin
orally agreed that, if any machines were disposed of, employment
would be provided for the workers on the machines taken out by
eliminating, as far as necessary, the practice of employing one per-
son to operate 2 machines. He again refused to enter into a written
contract with the Hosiery Workers.
Thereafter, several meetings were held at the office of Charles J.
Weiss, the respondents' attorney, which were attended by Weiss and
Kellenbenz, and occasionally by David Subin, William Smith, an
officer of the American Federation of Hosiery Workers, and Isadore
Katz, the Hosiery Workers' attorney.
About December 1, 1937, the Hosiery Workers sent a notice to
plants in Lansdale stating that the employees' grievances should be
taken up only through its shop committees and requesting that the
notice be posted in the plants for at least a month. A copy of the
notice was given to Alvin Holsopple, chairman of the Hosiery Work-
ers' shop committee at the respondents' plant, for delivery to the
respondents. Shortly after receiving the notice, Holsopple delivered
DAVID SUBIN AND BENJAMIN SUBIN 471
it to an employee in the respondents' office and was told that it would
be given to David Subin. While Holsopple was working in the
plant on December 10, 1937, Frank Weisbecker, the respondents'
superintendent, approached him carrying the liquidation notice which
David Subin had exhibited to Kellenbenz on August 9, and said, "Do
you think this would be a better notice to hang up than the one you
put in the office?" The same day the respondents posted the liqui-
dation notice on the plant bulletin board. The plant did not close
down, however, but was still in operation at the time of the hearing in
April 1938. The discharge of members of the Hosiery Workers dis-
cussed below commenced shortly thereafter.
David Subin testified that the liquidation notice had been posted
for the reason that the respondents had decided to discontinue oper-
ating their knitting business as unprofitable, and also because Kel-
lenbenz had threatened damage to the respondents unless they recog-
nized the Hosiery Workers. We find the allegation that Kellenbenz
threatened damage to be unfounded. From the continued operation
of the plant, moreover, it appears that the respondents did not in-
tend to liquidate their business.
The notice was drawn by the respondents in preparation for David
Subin's August 9 meeting with representatives of the Hosiery Work-
ers and was tendered as the respondents' answer to the Hosiery Work-
ers' request for a contract. The respondents then retained the notice
for 4 months without action and posted it on December 10, 1937, after
Holsopple had delivered the Hosiery Workers' request that griev-
ances be taken up through shop committees. We find that the re-
spondents utilized the liquidation notice, for the purpose of influenc-
ing their employees, through fear of loss of employment, to abstain
from or abandon membership in the Hosiery Workers, and thereby
interfered with, restrained, and coerced them in the exercise of the
rights guaranteed in Section 7 of the Act.
B. Sponsorship and domination of the Shop Committee
Simultaneously with their discouragement of membership in the
Hosiery Workers, the respondents fostered the creation of a labor
organization more to their liking.
In the summer of 1937, a notice was posted in the plant announc-
ing a meeting of the employees at the C. C. P. Club in Lansdale.
The testimony is conflicting as to whether or not the plant was closed
during the meeting but Frank Weisbecker, the superintendent, ad-
mitted and we find that the respondents granted employees permis-
sion to remain away from work during the meeting. About 175
employees attended the meeting, which was addressed by Lester
Hawes, an attorney, and the employees present decided to create a
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"shop organization." The organization's officers were elected at the
meeting, as well as committeemen from each department of the plant,
one of whom was Leo Minnucci. About 3 or 4 weeks later Minnucci
and several other employees met at Hawes' office to discuss the for-
mal creation of the "shop organization." Hawes showed them sev-
eral plans of organization employed in other plants, one was select-
ed, and the committee instructed Hawes to prepare an appropriate
constitution and bylaws. Shortly thereafter, the committee received
the proposed constitution and bylaws and called a meeting of the
employees to ratify them. Although the meeting was held on Satur-
day when the plant was not operating, only about 12 or 13 employees
attended and the "shop organization's" committee does not appear to
have functioned as such thereafter. Minnucci testified that he was
disturbed at the change in the employees' enthusiasm for the "shop
organization" as evidenced by their failure to attend the meeting,
and the morning of the meeting saw David Subin, as he "wanted to
know just what his opinion was and what this thing was all about
and what caused all the confusion there in the shop in the short
time." Minnucci further testified that Subin told him that he should
join or refrain from joining such organizations as he pleased.
Thereafter, Benjamin Subin and about 17 or 18 employees includ-
ing Minnucci attended a meeting at the home of H. Paul Fluck, one
of the employees. Subin informed the group that the respondents
intended going out of the knitting business and desired to sell their
knitting machines to the employees on an installment plan. Believ-
ing that the machines would be obsolete by the time they had been
fully paid for, the employees rejected his proposal and, instead,
sought to induce the respondents not to go out of business. During
the discussion it was suggested that the plant be organized in accord-
ance with the so-called Nunn-Bush Plan, of which some of the em-
ployees had read in a publication called "Social Justice."
About a week after the meeting at Flick's home, one of the em-
ployees brought into the plant a copy of "Social Justice" containing
the Nunn-Bush Plan and it was passed among the knitters during
working hours. Minnucci gave David Subin the publication, and
the next day Subin told him that he thought it was a "wonderful
thing." About a week later, those who had attended the meeting
at Fluck's home and Benjamin Subin met at the home of Andrew
Weisbecker, Frank Weisbecker's brother, discussed the Nunn-Bush
Plan, and determined to secure further information about it. There-
after, Frank Weisbecker distributed about 20 or 30 booklets contain-
ing the Nunn-Bush Plan among the employees at the plant. A second
meeting occurred at Andrew Weisbecker's home, and at one of the
meetings Benjamin Subin explained the Nunn-Bush Plan to the
group and told them that he was very much interested in it.
DAVID SUBIN AND BENJAMIN SUBIN 473
On December 11, the day following the posting of the liquidation
notice, Minnucci spoke with David Subin for about an hour, and
later with several knitters. He determined to interview businessmen
in Lansdale, who he hoped would induce the respondents to remain
in business. Commencing the same afternoon, Minnucci and Clarence
Strouse, another employee, spoke with several businessmen in Lans-
dale concerning the liquidation notice. About December 15, 1937,
some of the businessmen drafted a letter 1 which Minnucci, Strouse,
and several others circulated among the employees for their signa-
ture. The letter was signed at the plant during working hours by
about 220 employees. David Subin testified that, before the letter
was circulated for signature, he had told Minnucci and Strouse that
he "hated to see so many people thrown out of employment" and that
the respondents "would probably have an orderly liquidation unless
some plan were arranged whereby [they] could operate in a nice,
peaceful way." Minnucci and Strouse took the letter and the em-
ployees' signatures to Subin and discussed the proposed liquidation
with him. This meeting was followed by others between the same
parties and resulted in the preparation of a plan of organization for
the employees, based upon the Nunn-Bush Plan. About December
18, a draft of the proposed organization was submitted to the
respondents' attorney, Weiss, who shortly thereafter returned it in
the identical form in which it was subsequently placed in operation,
except that it did not include the names of the 5 members of the Shop
Committee.
On December 23, 1937, a notice was posted in the plant, with the
respondents' permission, announcing that a meeting of the employees
would be held at the Lexington Tavern, Line Lexington, Pennsyl-
vania, on December 24. At approximately 2: 30 o'clock on December
23, Minnucci assembled about 30 or 40 employees, some of whom he
called away from their work. David Subin read aloud the Shop
Committee plan which had been prepared by the respondents' at-
torney and answered questions addressed to him. Although the plan
'Board Exhibit No. 12:
LANSDALE, PENNA , December 15, 1937
Mr D. L SUBIN , Arcadia hosiery Mills, Lansdale, Penna.
DRAB MR. SuBN : Since your official action of Friday, December 10, 1937, which flatly
declared the intention of the interested Executives of the Arcadia Mills to liquidate as a
going Hosiery Plant, your employees , whom we find in a large majority are sincerely
loyal , both to the plant and to its individual Executives , have been actively engaged in
efforts to relieve conditions which we assume have brought about that action.
Therefore be it known that the undersigned , whom you will realize represent a definite
employees ' nucleus at your plant, are emphatically not in accord with any movement to
bring about , through outside action any labor trouble or disorders which would tend to
disrupt the present or subsequent policy at the Plant.
And furthermore , the undersigned , either in whole or through such individuals as you
choose to designate will not only welcome but urge an opportunity to meet with you
with a view to arriving at some workable conclusion which will , we hope, cause your
liquidation edict to be reconsidered.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not then been approved by the employees, Subin also told the
group that the respondents would recognize the Shop Committee
after it had been chosen. Subin left the meeting, and thereafter
Minnucci presided over it. The group determined to institute the
Shop Committee at the plant regardless of the desires of the em-
ployees who were not present. Minnucci presented the names of the
five men he had selected to serve as members of the Shop Committee
and called for objections or additions. None were made.
Pursuant to the notice posted in the plant, about 139 employees
met the next day at the Lexington Tavern. The meeting was opened
by Walter L. Eichenberger, an employee, who introduced Minnucci.
Minnucci then took charge of the meeting. He read the Shop Com-
mittee plan which had been adopted by 30 or 40 employees at the
plant on December 23, stating that David Subin had drawn and given
it to him. The plan constitutes five employees as the Shop Com-
mittee, and designates it the recognized bargaining representative of
all employees. It vests control of factory employment in the respond-
ents with the proviso that proposed discharges of all save temporary
employees be submitted to the Shop Committee for its approval.
Disputes which the respondents and the Shop Committee are unable
to adjust are to be resolved through arbitration. Provision is also
made as to hours, wages, and the method of paying wages.
At the same meeting, a ballot was taken among the employees
present who signed the December 15 letter. The testimony is con-
flicting as to whether the question voted on was "Do you want to join
us in our plan?" or "Do you want your jobs at the Arcadia or don't
you?" In any event, the result of the vote was unanimously in the
affirmative and the plan was put into effect at the plant.
It is clear from the record that the respondents, as part of their
resistance - to the organizational efforts of the Hosiery Workers,
foisted the Shop Committee upon the employees. By distributing
booklets containing the Nunn-Bush plan Weisbecker, the plant super-
intendent, indicated that the respondents would welcome the forma-
tion of a labor organization differing from the Hosiery Workers.
The respondents, themselves, participated in organization meetings
of the labor organization which resulted, thus removing any vestige
of doubt as to their wishes, and the plan ultimately put into effect
was drafted by their attorney. Under these circumstances, and in
the light of the threatened liquidation, the ballot taken on December
24 does not evidence the free selection of a bargaining agent, but re-
flects submission by the employees to the terms imposed by the re-
spondents as the condition of continued employment. We find that
the respondents have dominated and interfered with the formation
and administration of the Shop Committee and contributed support
DAVID SUBIN AND BENJAMIN SUBIN 475
to it, thereby interfering with, restraining, and coercing their em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
C. The discharges
During 1937, William H. Kelso, R. James Kelso, and Isaac Kelso,
brothers, and Alvin Holsopple were employed as knitters at the re-
spondents' plant. They were discharged on December 31, 1937. At
that time R. James Kelso served as a "legger," and the others as
"footers." All four had been members of the American Federation
of Hosiery Workers for more than ten years and had joined Branch
No. 67 thereof in August 1937. Holsopple became chairman-of its
shop committee and the Kelsos were active in soliciting members.
Frank Weisbecker, the respondents' superintendent, knew that the
four men were members of the Hosiery Workers.
During part of December in each year the plant ceases production
and the employees are required, without pay, to clean the machines
on which they work. On December 30, 1937, Holsopple and the
three Kelsos, were told to return to the plant the next day for that
purpose. Although Weisbecker testified that his instructions were
to report early in the morning and included a warning that those
who failed would be discharged, Holsopple and the three Kelsos
testified, and we find, that they were not told that they would be
discharged in the event of their failure to report in the morning. It
is undisputed that, in prior years, the respondents did not direct the
employees to commence the annual cleaning of their machines at any
definite time during the period set aside for that purpose.
Before December 30, members of the Hosiery Workers had received
notices from Kellenbenz requesting them to meet at his office in
Lansdale at 10 a. m. on December 31. Holsopple and the three
Kelsos attended the meeting, remaining until shortly before 12:30
p. m., and arrived at the plant about 5 minutes later. Before their
arrival, Frank Weisbecker prepared a list of absentees comprising
Holsopple, the three Kelsos, and another employee named Evans.
He testified that he told the members of the Shop Committee that he
intended discharging the missing employees if they did not appear
by 11 o'clock, but, at the Committee's request, advanced the time until
12 o'clock. The Shop Committee caused a notice approving the dis-
charge of Holsopple and the three Kelsos to be prepared. Although
Weisbecker expressed his intention of discharging all those absent,
and although he testified that he had determined in the afternoon
to refrain from discharging Evans, the Shop Committee's notice of
its consent to the discharges were drafted during the morning and
omitted any reference to Evans. The highly suspicious circumstance
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Shop Committee anticipated Weisbecker's change of heart
as regards Evans, suggests that the discharges which occurred were
agreed upon between it and Weisbecker as a means of removing active
members of the Hosiery Workers.
Shortly after Holsopple and the Kelsos reached the plant, Weis-
becker told them that they had arrived too late to begin cleaning their
machines. William Heck, a member of the Shop Committee, gath-
ered all the employees in the plant around Holsopple and the three
Kelsos, and said, "Well, let's get it over with." Weisbecker thereupon
informed the four men that they were discharged for not having
arrived at the plant during the morning. They protested that no
definite time to commence cleaning the machines had been set. It
was testified and we find that thereupon Minnucci, who was present,
said, "Maybe all this hinges on where you have been," that Weis-
becker said, "No, no. That has nothing to do with it," and that
Heck held up the notice announcing the meeting of the Hosiery
Workers and said, "We know where you were. We know there was
a union meeting." Frank Weisbecker refused the four discharged
employees' request that they be permitted to remain at the plant to
clean their machines, stating that he intended closing the plant within
an hour. He did not leave the plant, however, until about 4: 15 or
4: 30 that afternoon.
On January 3, 1938, Holsopple and the three Kolsos spoke with
David Subin at the plant. Subin censured them for not having
reported early on December 31 to clean their machines, and told them
that he could not comply with their request for reinstatement with-
out the consent of the Shop Committee, which had already approved
their discharge. After Subin definitely refused to reinstate them,
the employees asked for permission to remove their tools from the
plant. Subin allowed them to enter the knitting room for their tools
and told them to do so in an orderly fashion, stating that he might
be obliged to take them back in the future and he wanted to avoid
"any hard feelings." On passing through the plant, William H.
Kelso met Minnucci, who said to him, "This is a damn shame, Bill.
T didn't want to see this happen to you. You know why we did this,
don't you?" Kelso answered that he did not. Minnucci then said,
"Well, the main idea or the main object was to get rid of Al Hol-
sopple." R. James Kelso saw David Subin at the plant on January
5 in another effort to secure reinstatement. While speaking of the
four discharged employees, Subin admitted that "there is one in that
group that we don't want," but failed to identify the individual.
Upon the entire record, we believe that the respondents utilized the
late arrival of Holsopple and the Kelsos on December 31 as a pretext
for ridding the plant of employees whose advocacy of the Hosiery
DAVID SUBIN AND BENJAMIN SUBIN 477
Workers was distasteful to them. With respect to the length of time
required for the task of cleaning, Isaac Kelso did not testify, R.
James Kelso testified that he would have completed it in one hour;
William Kelso testified that he could have finished in 11/2 or 2 hours;
and Holsopple stated he could have finished in 3 hours. Weisbecker
stated that the men could not have finished by 4: 30. It is not neces-
sary to decide whether, had the men been permitted to start cleaning
on their arrival, they would have finished by 4: 15 or 4: 30, when
Weisbecker left the plant. The work of cleaning the knitting ma-
chines was, as we have stated, unpaid, and we do not believe that
mere lateness in reporting would have impelled the respondents to
such drastic action. The real reason lay in the known membership
of the men in the Hosiery Workers, and particularly in Holsopple's
leadership therein. Our conclusion in this regard is strengthened by
the spurious reason assigned by David Subin for refusing to reinstate
the men : that he was powerless to rescind the discharge without the
consent of the Shop Committee which had approved it. The plan
under which the Shop Committee was established, while requiring
the submission to it of proposed discharges, expressly restricts control
of employment to the respondents. Subin's argument further exposes
the respondents' efforts to interpose the Shop Committee between
them and the employees seeking genuine representation for collective
bargaining. We find that the respondents discharged Holsopple and
the three Kelsos because they had joined and assisted the Hosiery
Workers.
Bessie Holsopple and Richard Craner were working as "toppers"
on a knitting machine operated by Paul Leatherman when their work
ceased on January 7, 1938. The complaint alleges that the respond-
ents discriminatorily discharged them, but the respondents contend
that the two employees were laid off because the machine at which
t hey were working had been sold.
Mrs. Holsopple and Craner started to work for the respondents
during 1935. Both joined Branch No. 67 in August 1937, having
been members of the American Federation of Hosiery Workers for
years, and both actively solicited membership.
Mrs. Holsopple is the wife of Alvin Holsopple. During the attempts
of the Hosiery Workers to secure a contract she elicited unfavorable
comment from Frank Weisbecker, the plant superintendent, to whom
a knitter reported that she had said that David Subin had signed an
agreement with the Hosiery Workers which required only Benjamin
Subin's signature to become effective. Weisbecker sought her out and
stated that no such agreement had been signed and that in his opinion
none would be signed. On the same occasion, referring to a remark
attributed to Mrs. Holsopple to the effect that it almost killed her to
work at the plant, he suggested that she quit.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Craner, too, came to Frank Weisbecker's attention as a protagonist
of the Hosiery Workers. He secured between 25 and 30 applications
for membership, including that of Andrew Weisbecker, the superin-
tendent's brother. A few days after Andrew's application for mem-
bership, Frank threatened Craner with discharge unless he confined
his union activities to places outside the plant.
On January 7, 1938, Weisbecker told Craner that the machine' oper-
ated by Leatherman upon which Craner and Mrs. Holsopple were
working, had been sold and was being removed from the plant; that,
as a consequence, there was no work for Craner; and that he would
be called when needed. Craner communicated the state of affairs to
Mrs. Holsopple. Neither has since worked for the respondents. On
January 13, Craner inquired of Weisbecker concerning employment
and was told to come again at a later date. The next day, Mrs.
Holsopple and Craner went to the office for their pay. Each was told
there was no work and Craner was told, in addition, that Weisbecker
was too busy to see him.
When their work ceased, Craner and Mrs. Holsopple were senior
to other "toppers" who continued in the employ of the respondents.
Leatherman, the knitter, also continued to work notwithstanding the
sale and removal of the machine upon which he had been working.
In support of the respondents' contention that the two employees
were merely laid off, Weisbecker testified that he once intended to
recall Mrs. Holsopple, but as she had no telephone and as her services
were needed immediately, he was compelled to engage someone else.
He testified that on one occasion he had sent a messenger to call Craner
for employment, but Craner was not at home. In view of all the
circumstances, Weisbecker's testimony is unconvincing. We do not
believe that the respondents intended to reemploy Craner or Mrs.
Holsopple.
Mrs. Holsopple has not worked since January 7, 1938. Craner se-
cured other employment on February 14, 1938, but desires reinstate-
ment to his former position. His present wage is less than he received
while in the respondents' employ and the respondents' plant is nearer
to his home than his present place of employment.
We find that on January 7, 1938, the respondents discharged Bessie
Holsopple and Richard Craner because they had joined and assisted
the Hosiery Workers.
Morrell Leiter was employed by the respondents about 1933. At
the time of his discharge on February 2, 1938, he was working as a
"footer." He joined the American Federation of Hosiery Workers
about 1933, and Branch No. 67 thereof in October 1937 but does not
appear to have been an active participant in its activities. He testi-
fied that he secured some members for the Hosiery Workers in 1933
DAVID SUBIN AND BENJAMIN SUBIN 479
but none in 1937, that he did not speak to any of the employees or
supervisors at the plant concerning the Hosiery Workers, that Al
Higgins, whose identity does not appear in the record, was the only
person at the plant who knew of his membership in the organization,
and that he had attended only one of its meetings.
In accordance with the respondents' regulations, Leister and other
knitters were required to turn in the stockings they had knitted in
bundles of five dozen each. In the event that knitters required a few
stockings to complete a bundle at the end of a day's work, it was
customary for them to borrow the stockings from another and to re-
place the borrowed stockings at a later date. At the close of the
working day on January 31, 1938, Leister required nine additional
stockings to complete a bundle. He borrowed nine stockings from
Lester Berthold, a knitter who was absent from the plant at the time,
and told Leatherman of having borrowed the stockings. His two
"toppers" observed him taking the stockings from Berthold's
machine.
Leister went to the plant on February 2, the day before he would
normally have resumed work, to return the borrowed stockings to
Berthold. On entering the plant, he met Frank Weisbecker, who told
him that he had been discharged for stealing stockings. Leister in-
sisted that he had borrowed and not stolen the stockings and that,
although he was not required to work that day, he had returned to
the plant only to repay them. Weisbecker refused to discuss the mat-
ter. Leister saw Weisbecker at the plant the following day but was
refused reinstatement.
Weisbecker testified that Leister had been stealing stockings for the
past year, that on January 31 he caught Leister in the act, and dis-
charged him for this reason. The stockings Leister was accused of
stealing were blue; those on which he had been working, yellow. Had
Leister intended to steal, it is improbable that he would take stockings
of a color differing from those he had been knitting, would permit his
"toppers" to observe him taking them, or would tell Leatherman he
had taken them.
On the other hand, Leister was not an active member of the
Hosiery Workers. The record does not support a finding that his
membership in or his activities in behalf of that organization im-
pelled the respondents to discharge him. We find that by discharg-
ing Leister the respondents have not discouraged membership in a
labor organization by discriminating in regard to his hire and tenure
of employment.
Harry B. Jackson entered the respondents' employ in December
1934. At the time of his discharge, on February 2, 1938, he was
employed as a "legger" on the day shift. A member of the Ameri-
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can Federation of Hosiery Workers since 1924, he was an active
participant in the organizational campaign of Branch No. 67 at the
plant, serving as vice chairman of its organizing committee and
soliciting membership among the employees. Frank Weisbecker
knew of his membership in the Hosiery Workers.
Jackson was laid off on December 17, 1937, for the reason that
the respondents discontinued manufacturing the style of stockings
upon which he was working. He resumed work about January 18,
1938. On February 2, when Jackson was senior in point of service
to other knitters in the plant, Weisbecker told him that, as the order
for the stockings upon which he was working had been completed
and the respondents intended discontinuing the style, he would be
laid off until further notice. Jackson was not thereafter reemployed
by the respondents.
At the hearing, Weisbecker contended that Jackson had not been
discharged but had been laid off. As to the reason for the alleged
lay-off, he testified : "We were making a style and the machines were
sold, and the style went off, and we started dismantling the machine
a week later. The style was run out." It is apparent, however that
the respondents did not intend rehiring Jackson after February 2, as
they never subsequently offered him employment, although, between
February 2 and the date of the hearing, they filled two positions of
"loggers" by promoting helpers at the plant.
We find that the respondents discharged Jackson because of his
membership in and activity for the Hosiery Workers.
Peter Farrell was employed by the respondents as a "legger" on
the night shift from March 1936 until his discharge on February 3,
1938. He joined the American Federation of Hosiery Workers in
1929 and Branch No. 67 thereof on August 4, 1937. Farrell testi-
fied that on August 5, 1937, Frank Weisbecker asked him if he had
joined the Hosiery Workers, and received an affirmative reply. Weis-
becker maintained that Farrell had volunteered the information as
to his union affiliation. In any event, Weisbecker knew of Farrell's
membership. Farrell solicited members for the Hosiery Workers
among the employees, securing about 10 or 12 applications. In the
latter part of August 1937, Weisbecker told him to confine his
organizational activities to places outside the plant. On February
3, 1938, Weisbecker approached Farrell in the plant, saying, "Well
Pete, you are done tonight" and told him that he would be reem-
ployed as soon as a position became available. Farrell protested
that in laying him off Weisbecker had disregarded his seniority of
service. Farrell's helper and the knitter operating his machine on
the day shift both continued working at the plant. When Farrell
returned to the plant on February 4 for his pay, he asked David
DAVID SUBIN AND BENJAMIN SUBIN 481
Subin for reinstatement. Subin refused, stating that Weisbecker
had charge of hiring and discharging. The same day, Weisbecker
gave Farrell a letter of recommendation. Farrell was not
reemployed.
Although the respondents contend that Farrell, too, was not dis-
charged but was laid off because his machine had been sold, Weis-
becker testified that Farrell was not subsequently offered employment.
About February 3, three new knitting machines were brought into
the plant. One was in operation at the time Farrell was discharged
and the other two were placed in operation shortly thereafter. Be-
tween February 3 and the date of the hearing, the respondents pro-
moted two helpers at the plant to the position of "legger." We find
that on February 3 Farrell was discharged and not laid off and that
the respondents did not intend thereafter to reemploy him. We find
further that the respondents discharged Farrell because of his mem-
bership in and activity for the Hosiery Workers.
Theodore F. Klebes was employed by the respondents on July 23,
1936, as a first helper. He joined the Hosiery Workers in the early
part of August 1937, assisted in its organizational campaign by
soliciting membership among the employees, and secured about five
members. Fluck, of the Shop Committee of five, knew of his mem-
bership in the Hosiery Workers and his activity in its behalf.
In November 1937, when Klebes was earning $15 a week, he was
temporarily promoted to serve as a "legger" at $20 a week. After
working in this capacity for 2 or 3 days, he was reassigned to his
former position as a helper. About a week thereafter, Frank
Weisbecker again temporarily placed him in charge of a machine
as a "legger" and he continued in that capacity until Friday, Decem-
ber 10. On returning to the plant the following Monday, December
13, Klebes found another knitter operating his machine and was
told by Weisbecker that, as the machine would shortly be dismantled,
he was being laid off and would be informed when his services were
needed again. Klebes' former position as a helper had been filled
by the promotion of a second helper. Weisbecker gave Klebes a
letter of recommendation stating that his work was satisfactory and
that he had been laid off because the machine on which he had been
working had been sold. When Klebes asked Weisbecker for reem-
ployment several weeks later, he was told that no positions were
available and added : "if there was, you would have to be rehired
again, anyway." Since January 3, 1938, Klebes has been employed
at a garage earning $15 a week. He desires reinstatement to his
former position.
At the hearing, Weisbecker stated that Klebes was not discharged.
He testified that Klebes, at his own request, had been assigned to op-
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erate a machine which "went out" of the plant earlier than had been
anticipated and was accordingly returned to his former position;
that he was thereafter assigned to operate another machine which
also thereafter "went out"; that the knitter operating the machine
at which Klebes formerly had worked as a helper did not desire
Klebes to replace the helper who was employed in his stead; and
that, therefore, Klebes' former position was no longer available.
Between Klebes' alleged lay-off on December 13 and the date of the
hearing, the respondents promoted four first helpers to "leggers"
and three second helpers to first helpers, and hired eight new second
helpers. Their failure to inform Klebes of any of the positions
which had thus become available, convinces us that the respondents
discharged Klebes on December 13 and did not intend rehiring him
thereafter.
In view of Klebes' membership in and activity for the Hosiery
Workers, the respondents' hostility toward that organization, and
the unconvincing reasons assigned by the respondents for discon-
tinuing his employment and refusing to reinstate him, we find that
the respondents discharged Klebes because of his membership in and
activity for the Hosiery Workers.
Harry Beluch was discharged by the respondents on January 3,
1938, after having worked at the plant as a "legger's" helper for
about 3 years. He joined the Hosiery Workers during the summer
of 1937 and actively participated in its organizational campaign by
distributing application cards and soliciting membership in the
organization among the employees.
On January 3, 1938, when Beluch was working as a first helper
under George Gurtese, a knitter, at $15 a week, Frank Weisbecker
laid him off, but told the second helper on the machine to return
the same afternoon to work on a different knitting machine. At the
time, Beluch was senior in service to all the other helpers in the
plant. He requested but was refused permission to work at cleaning
new machines which were then being set up in the plant. Gurtese
continued working at the plant with the assistance of other helpers.
Later, Beluch asked Weisbecker to reinstate him but the latter
refused.
The respondents contend that Beluch was not discharged but was
laid off temporarily for the reason that one of the machines upon
which he was working was being moved. They explain their failure
to reemploy him by the claim that "different knitters . . . didn't
seem to want him." No direct evidence was introduced, however,
to show objection by knitters to Beluch's work or the reason for
such objections. It appears, moreover, that during the period be-
tween January 3, 1938, and the date of the hearing the respondents
DAVID SUBIN AND BENJAMIN SUBIN 483
promoted four first helpers to serve as "leggers," promoted three
second helpers to serve as first helpers, and hired seven second
helpers.
Beluch later secured employment at wages averaging $22 a week
but desires reinstatement to his former position for the reason that
the respondents' plant is nearer to his home than is his present place
of employment.
In view of Beluch's membership in and activity for the Hosiery
Workers, the respondents' hostility toward that organization, and the
unsubstantial character of the evidence introduced by the respond-
ents regarding his alleged lay-off and their failure to recall him,
we find that the respondents discharged Beluch for his membership
in and activity for the Hosiery Workers.
We find that, by discharging William H. Kelso, R. James Kelso,
Isaac Kelso, Alvin Holsopple, Bessie Holsopple, Richard Craner,
Harry B. Jackson, Peter Farrell, Theodore F. Klebes, and Harry
Beluch, the respondents discriminated in regard to their hire and
tenure of employment, thereby discouraging membership in a labor
organization and interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above,
occurring in connection with the operations of the respondents de-
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 to labor disputes burdening and obstructing commerce
and the free flow of commerce.
TIE REMEDY
We have found that the respondents have dominated and inter-
fered with the formation and administration of the Shop Committee
and have contributed support to it. By reason of the respondents'
domination, the Shop Committee cannot serve the respondents' em-
ployees as a genuine bargaining representative. Its continued
existence, moreover, constitutes an obstacle to collective bargaining
through freely chosen representatives of the employees.2 We shall,
accordingly, require the respondents to withdraw all recognition
from the Shop Committee and completely disestablish it as the
representative of any of their employees for the purposes of collective
bargaining.
2National Labor Relations Board v Pennsylvania Greyhound Lines, Inc., et al, 303
U. S. 261
169134-39-vol. 12-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we have found that the respondents, by discharging William H,
Kelso, R. James Kelso, Isaac Kelso, Alvin Holsopple, Bessie Hol-
sopple, Richard Craner, Harry B. Jackson, Peter Farrell, Theodore
F. Klebes, and Harry Beluch, have discriminated in regard to their
hire and tenure of employment, we shall order the respondents to
offer each of them immediate and full reinstatement to his former
or a substantially equivalent position without prejudice to his senior-
ity and other rights and privileges, and to make each whole for any
loss of pay he may have suffered by reason of his discharge, by
payment to each of a sum of money equal to the amount which he
normally would have earned as wages from the date of his discharge
to the date of the respondents' offer of reinstatement, less his net
earnings3 during such period.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAw
1. American Federation of Hosiery Workers, Branch No. 67, and
the Shop Committee are labor organizations, within the meaning
of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of the Shop Committee and contributing support to it, the
respondents have engaged in and are engaging in unfair labour
practices, within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of William H. Kelso, R. James Kelso, Isaac Kelso, Alvin Hol-
sopple, Bessie Holsopple, Richard Craner, Harry B. Jackson, Peter
Farrell, Theodore F. Klebes, and Harry Beluch, thereby discourag-
ing membership in American Federation of Hosiery Workers, Branch
No. 67, the respondents have engaged in and are engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor
practices, within the meaning of Section 8 (1) of the Act.
a By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondents, which would not have been incurred but for his
unlawful 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 Workers Union, Local 2590, 8 N L R B
'440. Monies received for work performed upon Federal , State, county, municipal, or
other work-relief projects are not considered as earnings , but, as provided below in the
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 government or governments which supplied the funds for said work -relief projects.
DAVID SUBIN AND BENJAMIN SUBIN 485
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. The respondents have not engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act by discharging and
refusing to employ Morrell Leister.
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
respondents, David Subin and Benjamin Subin, Lansdale, Pennsyl-
vania, individually and as partners doing business under the trade
name and style of Arcadia Hosiery Company, and their heirs,
executors, administrators, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of the Shop Committee, or with the formation or administra-
tion of any other labor organization of their employees, and from
contributing support to the Shop Committee or to any other labor
organization of their employees;
(b) Discouraging membership in American Federation of Hosiery
Workers, Branch No. 67, or any other labor organization of their em-
ployees, by discharging or refusing to reinstate any of their employees,
or in any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of their employment;
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self -organization, 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 purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from the Shop Committee as repre-
sentative of any of their employees for the purposes of dealing with
the respondents concerning grievances, labor disputes, rates of pay,
wages, hours of employment, or other conditions of employment, and
completely disestablish said Shop Committee as such representative;
(b) Offer to William H. Kelso, R. James Kelso. Isaac Kelso, Alvin
Holsopple, Bessie Holsopple, Richard Craner, Harry B. Jackson,
Peter Farrell, Theodore F. Klebes, and Harry Beluch immediate and
full reinstatement to their former or substantially equivalent posi-
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, without prejudice to their seniority and other rights and privi-
leges;
(c) Make whole said William H. Kelso, R. James Kelso, Isaac
Kelso, Alvin Holsopple, Bessie Holsopple, Richard Craner, Harry B.
Jackson, Peter Farrell, Theodore F. Klebes, and Harry Beluch for any
loss of pay they may have suffered by reason of their discharge, by
payment to each of them respectively of a sum of money equal to the
amount which he would normally have earned as wages during the
period from the date of his discharge to the date of said offer of rein-
statement, less his net earnings during said period; deducting, how-
ever, from the amount otherwise due to each of 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 amount, so deducted, to the appropriate fiscal agency
of the Federal, State, county, municipal, or other government or gov-
ernments which supplied the funds for said work-relief projects;
(d) Immediately post notices in conspicuous places throughout
their plant and maintain such notices for a period of at least sixty
(60) consecutive days, stating (1) that the respondents will cease and
desist in the manner aforesaid, and (2) that they will take the affirma-
tive action set forth in paragraphs 2 (a), (b), and (c) of this Order;
(e) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that by discharging and thereafter refusing to employ Morrell
Leister, the respondents have engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.