Malina Co., Inc.

National Labor Relations Board - Board Decisions

Sep 11, 1939

15 N.L.R.B. 187 (N.L.R.B. 1939)

In the Matter Of MALINA COMPANY, INCORPORATED AND BENDYTHE
CORPORATION and TEXTILE WORKERS UNION OF, AMERICA
In the Matter Of MALINA COMPANY, INC., AND BENDYTHE CORPORA-
TION and INDEPENDENT YARN' WORKERS ASSOCIATION
Cases Nos. C-1319 and R-1417, respectively.Decided
September 11, 1939
Rayon Yarn Processing industry-Settlement : stipulation . providing for com-
pliance with. the Act, including disestablishment of company -dominated , union,
back pay in specified amount as to one employee in full satisfaction of his and
Union's claim and dismissal of petition-Order: entered on stipulation.
Mr. Albert Ornstein, for the Board.
Silver & Bernstein, by, Mr. Edward S. Silver, of New York City,
for the respondents.
Seidman & Holzman, of New York City, for the Association.
Mr. Alfred Udofj, of New York City, for the T. W. U. A.
Mr. F. Hamilton Seeley, of counsel to the Board.
DECISION
AND .
.ORDER
STATEMENT . OF THE CASE
On May 23, July 7, and August 16, 1938, respectively, Independent
Yarn Workers Association, herein called the Association, filed with
the Regional ' Director of the. Second Region (New York City) a
petition, an amended petition, and a second amended petition, alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of Malina Company, Inc., and Bendythe
Corporation, both.of New York City, .herein called the respondents,
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the National Labor Relations Act, .49
Stat. 449, herein called the Act. On' September 12, 1938, the National
Labor Relations Board, herein called the Board, acting pursuant to
Section 9 (c) of the Act and Article III, Section 3, of. National Labor
Relations Board Rules and Regulations-Series 1, as amended, or-
•dered. an investigation and authorized the Regional Director to. con-
15 N. L. R. B., No. 24. •
187
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct it and to provide for an appropriate hearing upon due notice.
On October 24, 1938, the Regional Director issued a notice of
hearing, copies of which were duly served upon the respondent, the
Association, and upon the Textile Workers Organizing Committee,
herein called the T. W. O. C:, a labor grganization -claiming to
represent employees directly affected by the investigation.
Upon charges and amended charges duly filed by the T. W. O. C.,
the Board, by the Regional Director, issued its complaint, dated
December 5, 1938, against the respondents, alleging that the respond-
ents had engaged 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. Copies of the complaint and" notice of hearing
thereon were duly served upon the respondents, the T. W. O. C.,
and the Association. On December 6, 1938, the Board, pursuant to
Article II, Section 37 (b), and Article III, Section 10 (c) (2), of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered the complaint case and the representation case
consolidated for the purpose of hearing and for all other purposes.
Concerning the unfair labor practices, the complaint alleged, in
substance, that the respondents (1) discharged and refused to rein-
state one Lloyd Klenert, an employee, because he joined and assisted
the T. W. O. C., and engaged in other concerted activities for the
purposes of collective bargaining and other mutual aid and protec-
tion; (2) dominated and interfered with the formation and adminis-
tration of, and gave financial and other support and aid to, the
Association; (3) by the above-mentioned activities, and by urging,
persuading, and warning their employees to refrain from becoming
or remaining members of the T. W. O. C., by threatening their em-
ployees with discharge and other reprisals if they became or remained
members of the T. W. O. C., by keeping under surveillance the
meetings and meeting places of the T. W. O. C., and by other acts,
interfered with, restrained, and coerced their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act..
On December 19, 1938, the respondents filed their answer to the
complaint in which they admitted certain of'the allegations relating
to their businesses, but denied the allegations of unfair labor prac-
tices. On December 21, 1938, the Association filed a petition for
leave to intervene and for permission to file an answer to the com-
plaint. This petition was granted by the Regional Director on
December 22, 1938, and the Association was allowed to intervene in
the proceeding but only for the purpose and to the extent of partici-
pating in that part of the proceeding which related to the Section
8 (2) allegation of the complaint. Thereafter, the Association filed
its answer in which it denied being dominated or interfered with in
MALINA '.COMPANY, INCORPORATED 189
its formation or administration by the respondents, or that it received
financial or other support and aid from the respondents. Pursuant
to notice duly served upon the parties the hearing in this matter was
postponed from time to time and, on June 16, 1939, the Regional.
Director postponed the hearing indefinitely.
On-June 16, 1939, the respondents, the Association, Lloyd Klenert,
the Textile Workers Union of America, and counsel for the Board
entered into the following' stipulation :
STIPULATION
It is hereby stipulated and agreed by and between Malina
Company, Inc. and Bendythe Corporation, hereinafter called
the Employers;' Textile Workers Union of America, C. I. 0.,
hereinafter called the Union; Independent Yarn Workers'
Association, hereinafter called the Association; Lloyd Klenert;
and Albert Ornstein, attorney for the National Labor Relations
Board, Second Region; that:
I. Upon charges duly filed by .the Union, the National Labor
Relations Board, hereinafter called the Board, by Elinore M.
Herrick, Regional Director for 'the Second Region, acting pur-
suant to :authority granted in Section 10' (b) of the National
Labor Relations Act, 49 Stat. 449, hereinafter called the Act,
and its Rules ,and Regulations, Series 1, as a-mended, hereinafter
called the Rules and Regulations, Article IV, Section 1, issued
its Complaint on. the 5th day of December 1938 against the
Employers.
II. A copy of the Complaint and Notice of Hearing thereon,
and a copy of the Third Amended Charge together with a copy
'of the Act and of the Rules and Regulations were duly served
upon the Employers, the Union', and the Association.
III. "Textile Workers Organizing Committee, C. I. 0.," and
'"Textile Workers Union of America, C. I. 0.," are the successive
names of the 'same organization, the latter name having been
adopted by.the said organization in May 1939. Textile Workers
`Organizing Committee, C. I. O.,, and Textile Workers Union of
America, C. I. 0., affiliated with the Congress of Industrial
'Organizations, is and. has been a labor organization within the.
meaning of Section 2, subdivision '5, of the Act.
IV. Independent Yarn Workers' Association is a labor organi-
zation within 'the meaning of Section 2, subdivision 5, of the
Act. '
V. The Employers, the ' Union, the Association and Lloyd
Klenert hereby waive in' the- above entitled matter the right to a
hearing, to the taking of testimony or other evidence before a
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner, and to the making of findings of fact and con-
clusions of fact and of law pursuant to the provisions of the
Act by the Board.
VI. This ;Stipulation together. with the petition, amended
petition, and second amended petition filed with the Board, Sec-
ond Region, under Section 9; subdivision (c), of the Act and
dated respectively, May 19, 1938, May 27, 1938, and August 15,
1938, and filed with the Board, Second Region, on May 23, 1938,
July 7, ' 1938 and August 16, 1938, respectively ; and together
with the Order of the Board Directing Investigation and Hear-
ing dated September 12, 1938, the Third Amended Charge dated
and filed December 5, 19381' the Complaint dated December
5, 1938, the Order of Consolidation of the Board dated Decem-
ber 6, 1938, the Notices of Hearing in cases II-C-1830 and
II-R-967, the Rules and Regulations of the Board; Series 1, as
amended; together with the affidavits of service of the various
papers mentioned in this paragraph and the various notices of
postponement' and 'of continuance issued and served in these
proceedings ; together with the Answer of the Employers to the
Complaint herein, said Answer being dated December 19; 1938,
Motion of the Independent Yarn Workers' Association to Inter-
vene and for Leave to File an Answer dated December 21, 1938;
together with the copy of the Answer of the Regional Director
of the Second Region to the aforesaid Motion of the Independent
Yarn Workers' Association dated' December 22; 1938; and to-
gether with the Answer of the Independent Yarn Workers"
Association dated January 3, 1939, shall constitute the entire rec-
ord in this proceeding and shall be filed with the Chief Trial
Examiner of the Board at Washington, D. C.
VII. This entire Stipulation is subject to the approval of the
Board. An Order of the 'Board approving this Stipulation, if
issued, -shall become part of the record in the above entitled
matter. If this Stipulation is not approved by the Board, the
Stipulation and all its parts shall be null and void and of no.
effect and as if it had never been made.
It is further stipulated and agreed by and between the parties
to this Stipulation, that : '
VIII. The. Employers admit' the facts stated in Appendix A,
attached hereto and incorporated herein, are true.
IX. Upon the entire record in 'the. above entitled proceed-
ings, including this Stipulation, the Board may forthwith enter
the Order set' forth below in this paragraph, and upon appli-
cation by the Board,' without further notice to the parties to
this Stipulation, the United States Circuit Court of Appeals for
MALINA COMPANY, INCORPORATED 191
the Second Circuit,' or any other appropriate court as provided
in Section 10, subdivision (e), of the Act, may enter a decree
enforcing said Order of the Board, and the parties to this
Stipulation expressly waive their rights to contest the entry
of such a decree. The Order referred to in this paragraph is
as follows :
The Employers, Malina Company, Inc. and Bendythe Cor-
poration, their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) In any. manner dominating or interfering with the ad-
ministration of the Independent Yarn Workers' Association, or
with the formation or administration of any other labor organ-
ization of their • employees, and from contributing financial and
other support to the Independent Yarn Workers' Association
and to any other labor organization of their employees.
(b) In any manner interfering with, restraining or coercing
their employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective
bargaining or other mutual aid and protection as`_guaranteed
under Section 7 of the National Labor Relations Act.
(c) Discouraging membership in the Textile Workers Union
of America, C. I. 0., or, any other labor organization of their
employees' own choosing, by discriminating in regard to hire
and tenure of employment or other term' or condition of em-
ployment.
2. Take the following affirmative *action which the Board finds
will effectuate the purposes of the, Act :
(a) Withdraw all recognition from the Independent Yarn
Workers' Association as the representative of any of their em-
ployees for the purpose of dealing with the Employers concern-
ing grievances, labor disputes, wages, hours of employment, and
other conditions of employment, and completely disestablish the
Independent Yarn Workers Association as such representative.
(b) Pay to Lloyd Klenert the sum of- five hundred dollars
($500).
(c) Post notices in conspicuous places about their Manhat-
tan Plant and premises, stating (1) that Malina Company,
Inc. and Bendythe Corporation will cease and desist as afore-
said; (2) that Malina Company, Inc. and Bendythe Corpora-
tion will completely disestablish the Independent Yarn Work-
ers' Association as such representative, and Further, maintain
said notices posted in conspicuous places as aforesaid for a
period of at least sixty (60) consecutive days.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Second Region of
the Board in writing within ten (10) days from the date of
the entry of this Order by the Board, what steps the Employers
have taken to comply with this Order.
And it is further ordered that the petition, as amended, for
Investigation and Certification of Representatives, pursuant to
Section .9 (c) of the Act, filed by the Association, be, and it
hereby is, dismissed.
X. Upon the payment of the sum of five hundred dollars
($500) to Lloyd Klenert by the Employers, as provided for
in paragraph IX., subdivision 2 (b) of this Stipulation, any
and all claims of said Lloyd Klenert and of the. Union in re-
spect to said Lloyd Klenert as against the Employers, their
officers, agents, successors, and assigns, shall be deemed, and
shall thereby be, settled in full.
XI. In the event that this Stipulation is approved by the
Board, it is hereby expressly understood and agreed that the
terms of this Stipulation do contain the entire agreement of
the parties to this Stipulation with respect to the entry of a
decree by an appropriate court enforcing the Order set forth
above, in the manner hereinabove provided, and it is further
understood and agreed that there is no verbal or other agree-
ment of any kind which in substance or effect or in any way
restricts the privilege of the Board to petition for the entry
of a decree by an appropriate court enforcing said Order in
the manner hereinabove provided.
APPENDIX A
The respondents concede jurisdiction and admit that they
are engaged in Interstate Commerce within the meaning of the
Statute.
The respondents purchase approximately ninety-five percent
(95%) of their raw materials from points outside of the State
of New York, which is shipped to said respondents by truck
and rail.
The respondents sell and ship approximately fifty-five percent
(55%) of their finished products to points outside of the State
of New York. Shipments are by rail and truck.
On June 29, 1939, the Board issued its order approving the
above stipulation, making it part of the record herein, and trans-
ferring the cases to the Board for action pursuant to the provisions
of the stipulation.
On August 22, 1939, Textile Workers Union of America filed a
motion to change the title of these proceedings by substituting the
-
MALINA COMPANY, INCORPORATED 193
name "Textile Workers Union of America" for the- name "Textile
Workers Organizing Committee" wherever it appeared in these
proceedings . On August 24, 1939, the Board served all parties
with notice that it would, on September 8, 1939, unless sufficient
cause to the contrary should then appear , substitute the name "Tex-
tile Workers Union of America" for the name "Textile Workers
Organizing Committee" wherever it appears herein. No objections
having been filed, on September 8, 1939, the Board issued its order
substituting the name "Textile Workers Union of America" for
the name "Textile Workers Organizing Committee" wherever it
appeared in these proceedings.
Upon the stipulation and the entire record in the case , the Board
makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Malina Company , Inc., a New York corporation , has its principal
office and place of business in New York City, and is engaged in
the sale and distribution of rayon yarns and related products.
Bendythe Corporation , a New York corporation, has its princi-
pal office and place of business in New York City, and is engaged
in-the business of processing yarn.
The respondents purchase approximately 95 per cent of their
raw materials outside the State of New York and sell and ship
approximately 55 per cent of their finished products to points outside
the State of New York . The respondents concede the jurisdiction
of the Board and admit that they are engaged in commerce within
the meaning of Section 2 (6) of the Act.
We find that the above-described operations constitute a continu-
ous flow of trade, traffic , and commerce among the several States.
ORDER
Upon the basis of the above findings of fact, stipulation,. and
the entire record in the case, and pursuant to Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
hereby orders that Malina Company, Inc., and Bendythe Corpora-
tion, their officers, agents , successors , and assigns , shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of the Independent Yarn Workers Association , or with the
formation or administration of any other labor organization of their
employees , and from contributing financial and other support to
the Independent Yarn Workers Association and to any other labor
organization of their employees;
194 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD
(b) In any manner interfering with, restraining, 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 bargaining or other mutual
aid and protection as guaranteed under Section 7 of the National
Labor Relations Act;
(c) Discouraging membership in the Textile Workers Union of
America, C. I. 0., or any other labor organization of their employees'
own choosing, by discriminating in regard to hire and tenure of
employment or other term or condition of employment.
2. Take the following affirmative action which the Board finds
will effectuate the purposes of the Act :
(a) Withdraw all recognition from the Independent Yarn Work-
ers Association as the representative of any of their employees for
the purpose of dealing with the respondents concerning grievances,
labor disputes, wages, hours of employment, and other conditions
of employment, and completely disestablish the Independent Yarn
Workers Association as such representative;
(b) Pay to Lloyd Klenert the sum of five hundred dollars ($500) ;
(c) Post notices in conspicuous places about their Manhattan
plant and premises, stating (1) that Malina Company, Inc., and
Bendythe Corporation, will cease and desist as aforesaid; (2) that
Malina Company, Inc., and Bendythe Corporation will completely
disestablish the Independent Yarn Workers Association as such
representative, and Further maintain said notices posted in con-
spicuous places as aforesaid for a period of at least sixty (60) con-
secutive days;
(d) Notify the Regional Director for the Second Region of the
Board in writing within ten (10) days from the date of the entry
of this Order by the Board, what steps the respondents have taken
to comply with this Order.
AND IT Is FURTHER ORDERED that the petition, as amended, for In-
vestigation and Certification of Representatives, pursuant to Section
9 (c) of the Act, filed by the Association, be, and it hereby is,
dismissed.