155 Misc. 262 | N.Y. Sup. Ct. | 1935
The main contentions of the parties to this case were set out in the opinion handed down on December 1, 1934 (153 Misc. 738). In that opinion the court held that there was nothing in section 7-a of the National Industrial Recovery Act (U. S. Code, tit. 15, § 707, subsection [a]) that prevented the making or carrying out of the award for a closed shop rendered under the agreement entered into with the New York Regional Board. This award and the contract it embodies plaintiff here seeks to enforce. This “ agreement ” sets out that the “ form of arbitration should be determined by the Regional Labor Board ” and was “ accepted by the signatories of this agreement.” “ All parties hereby agree to abide by such arbitration, and the decision of the arbitration shall be binding upon the successors and assigns.” This “ agreement ” was signed by plaintiffs and by Ralph A. Freundlich, Inc., Ralph A. Freundlich, president. It was also signed by the Doll Manufacturers Association of New York, by Max Shlivek, attorney. Mr. Shlivek is attorney for defendant herein. In the decision above referred to the court gave the parties one week within which to compose their differences. If there was no composition within one week the court stated that it would proceed to decide whether the defendant had violated the contract. It appeared from the testimony of Mr. Freundlich, the president of defendant, that his company would still reemploy certain members of plaintiff if the
Defendant conducted an intrastate and an interstate business in making dolls and toys and selling them. It had showrooms and offices at No. 200 Fifth avenue, New York.'
Until the violations complained of, defendant had its factory to make dolls at No. 807 Broadway. Defendant’s industry is seasonal.
On June 16, 1933, the National Industrial Recovery Act became a law.
In August, 1933, plaintiff declared a general strike, which became effective in defendant’s plant, but the labor mediation committee of the NRA settled the strike about September 29, 1933, after a temporary agreement between plaintiff union and an association of employers in the greater city of New York. This temporary agreement provided for an immediate wage increase of ten per cent in all classifications of factory labor in the doll business, for a forty-hour week, the diminution of home work, abolition of contracting and subcontracting, etc. The agreement provided that if the workers returned to work October 2, 1933, the employers would before January 1, 1934, enter into a complete collective agreement which would give full recognition to plaintiff union and would contain provisions the parties had agreed on. The other controverted matters were to be determined by a board of mediation.
Pursuant to this understanding, the parties entered into an agreement October 28, 1933. It set out the rate of wages to be paid workers according to craft, that thirty-six hours’ work should constitute the working week, provided for the employment of none except members of plaintiff in good standing, for the abolition of subcontracting and homework, for no strikes or lockouts during the contract, for an adjustment board and impartial machinery for settling disputes. It was signed by Freundlich, defendant’s president; as president of the Doll Manufacturers’ Association of New York, of which defendant was a member. On November 4, 1933, a code was approved by the president for the toy and playthings industry. That code was filed in the State of New York on February 24, 1934.
The agreement of October 28, 1933, was not to become effective unless the Regal Doll Company of Trenton, N. J., signed a similar
Plaintiffs then notified employers that there would be a general strike. The employers, who were producing for the annual Doll and Toy Fair, then sought the intervention of the New York Regional Labor Board to prevent the threatened strike. There was a meeting at the office of the Regional Labor Board February 29, 1934. The employers agreed to submit the union’s demands to arbitration. The meeting was then adjourned to March 1, 1934, to endeavor to get the Regal Doll Company of Trenton to become a party to the arbitration. The Regal Doll Company did join the arbitration, as did other doll makers who were not members of the Doll Manufacturers’ Association of New York, of which defendant was and is a member.
There was a full and complete meeting of the minds of the parties. They agreed that the form of the arbitration should be determined by the Regional Board. It reads as follows: “An agreement is entered into with the New York Regional Board by the signatories hereto, to submit the following matters to arbitration: 1. Rates of wages. 2. Hours of work. 3. Conditions of discharge and employment. 4. All other conditions of work. 5. Any other point of dispute between all parties involved.
“ The form of arbitration shall be determined by the Regional Labor Board, and is hereby accepted by the signatories.”
The consideration for the employers’ agreement to enter a binding contract with the union through the arbitrator appointed by the New York Regional Board was the calling off of the strike by the employees. As already stated the union faithfully carried out the agreement to call off the strike.
There is no doubt of the Regional Labor Board’s authority to act as they did in this matter. But if any similar body had been selected to arbitrate or mediate as above agreed, they would have had the right to make just such a finding, which would have bound both parties under both the National Industrial Recovery Act and the so-called Schackno Act in this State (Laws of 1933, chap. 781).
Dr. N. I. Stone, an economist of reputation and ability, was selected as sole arbitrator. There were long hearings before Dr. Stone. It developed that the abrogated agreement of October 28, 1933, contained some provisions which were satisfactory to both sides. On some of these all parties agreed, and they were incorpo
In order to permit, orders to be taken at the annual toy fair in April as already stated, an intermediate decision was rendered on monthly wages March 19, 1934. A supplementary decision was rendered on April nineteenth on wages and both these are in article VI of the “ agreement which is part of this decision.” The weekly rates given in the decisions of March nineteenth and April nineteenth in article VI are the basis for the piece rates which are established for each plant by agreement between owners and the union. After several conferences between both the attorneys for the association and the union, the arbitrator acting as mediator, a mutual agreement was reached on all articles except 24 and 26, which were incorporated into the agreement. As Dr. Stone says. “ In view of the very important concession made by the union * * * which will result in substantial savings in costs to the employer and * * * the fact that the industry is allowed to use the piece work system,” the arbitrator refused to find that the employer had the right to dismiss workers in his sole discretion (in a peak season also) not to exceed ten per cent of all workers, but instead Dr. Stone found that the employer had the right to reorganize his shop “ in case of a change in the character of his business.”
A discussion of article 26 is not germane to this decision.
Under the agreement there was to be no home work. The agreement between the Doll Manufacturers’ Association of New York, of which defendant is a member, and the plaintiff union, of May 25, 1934, provided that: “ Whereas the parties hereto desire to cooperate in establishing conditions in the industry which will tend to secure to the workers a living wage and provide methods for a fair and peaceable adjustment of all disputes which may arise between the parties hereto, Now, therefore, the parties hereto agree as follows: First. The Association and the Union each on behalf of its members, obligate themselves in good faith to observe and perform all the provisions of this agreement. Second. The Association agrees that its members will employ only good standing members of the Union who carry the working cards issued by the Secretary
The Code of Fair Competition for the Toy and Playthings Industry provides for not less than twelve dollars per week for forty hours work (except that learners for a six weeks’ period shall receive eighty per cent of this minimum per week for forty hours’ labor), and the number of apprentices is limited to ten per cent of the whole number of employees; for a tolerance period of overtime of ninety-six hours a year, provided that no employee should work more than forty-eight hours in any one week; for paying time and a third for overtime. The code prohibits work in excess of the number of hours prescribed in the code and forbids home work.
After Dr. Stone’s decision, defendant entered into partial performance of the terms of it. During the trial, in answer to a question of the court, Mr. Shlivek, attorney for defendant, said: “ If your Honor means to inquire whether the defendant did comply in part with his agreement I will say that he (it) did.”
One of the respects in which defendant partly performed the agreement was that “ back pay ” (under the arbitrator’s decision relating to the decisions back to March 1, 1934) was refunded to some of the workers. (Plaintiff’s Exhibits 23a, 23b, 23c, 24 and 24a,
The plaintiff made fruitless attempts to set up the adjustment board provided for in the agreement and selected its representative. The association of which defendant was a member never selected one. Plaintiffs finally wrote Mr. Shlivek that it wanted to go before the arbitration board provided for in the collective agreement, which was part of the decision of May 25, 1934.
Esposito had attempted to see Mr. Freundlich during June, 1934, to discuss matters. He was unable to see him.. He then attempted through an intermediary to see Mr. Schfivek to talk about an adjustment board. At the time arranged Mr. Esposito was there but Mr. Schfivek was not.
At the suggestion of Ben Golden, executive secretary of Regional Labor Board, plaintiff made complaint against defendant in writing July 5, 1934. Although notified, defendant failed to appear on the day set. On July eleventh Mr. Schfivek appeared and stated he had authority to act for defendant. He admitted that defendant was going to move to Clinton, Mass. Mr. Schfivek offered to give plaintiff’s accountants access to defendant’s books, but this was never done because Mr. Freundlich would not permit it. On November ninth Mr. Freundlich was asked by counsel for the plaintiff: “ Q. Mr. Freundlich, do you agree on behalf of the defendant to employ in Clinton, Massachusetts, in strict conformity with the agreement of May 25, 1934, each and every worker heretofore employed in the defendant’s factory in New York who may apply for work either at the defendant’s offices in 200 Fifth Avenue, New York City, or at the defendant’s factory in Clinton, Massachusetts?” to which he answered “ I will.”
Counsel for the plaintiff states that on the fourteenth of November he asked Mr. Freundlich whether he would speak to some workers then in court to arrange for their employment, and that Mr. Freundlich answered that he would see them at his office, 200 Fifth avenue, Thursday afternoon, November fifteenth, at five o’clock, and that a committee of thirty workers appeared there at that time but the committee was informed that Mr. Freundlich was not in town and not expected until Tuesday, the twentieth; that on the sixteenth of November plaintiff’s counsel tried to reach Mr. Shlivek, defendant’s counsel, by telephone, but was informed that he was not expected to return to the city until Monday, the nineteenth of November, and that on the sixteenth of November plaintiff’s counsel sent a telegram to the defendant at Clinton, Mass., that thirty workers were ready to commence work in the factory at Clinton on Monday,
On Monday the court received a letter from Mr. Schlesinger, plaintiff’s counsel, stating that counsel was thoroughly convinced that Mr. Freundlich offered to engage the New York men for Clinton in the best faith and that he would communicate with Mr. Freundlich immediately. On November twenty-sixth Mr. Schlesinger, attorney for the plaintiff, wrote the court that Mr. Esposito, the manager of the union, finally saw Mr. Freundlich, who took a list of his former employees who wished to work in Clinton; he said he would require a few days to think it over. Mr. Freundlich asked Mr. Esposito to call again on Friday, -the nineteenth. Mr. Esposito called but was advised that Mr. Freundlich would not return until Tuesday, the twentieth. Finally a conference between the attorneys for the parties was held at the chambers of the court on Thursday, December tenth, at which Mr. Shlivek stated that he had been engaged in one or two different courts and that his office had not promptly called his attention to the letters of Mr. Schlesinger. It soon became apparent to the court that nothing would be done.
Freundlich swore that he would ask workers to join the union and would employ nobody at Clinton, Mass., unless they are members of the plaintiff union. He was asked, assuming that the agreement was legal, if he was willing to abide by the second paragraph relative to the closed shop.
The contention of defendant is that the agreement between the Regional Labor Board, where all parties went for succor, and the Doll Manufacturers Association, of which defendant was the most important member, and defendant, signing by its president, who had been president of the Doll Manufacturers Association, and Dr. Stone, the arbitrator, was not a contract but was an agreement to make a contract. This is the most unique argument ever presented to this court. Of course it was a solemn contract presumably entered into in good faith by every party to it. But if it is only an agreement to make a contract, it was an agreement to make a finished contract where every term and provision had been considered, fought over, and agreed upon, by both sides, or decided by their agent, an officer of the United States, to whom had been delegated in the most sacred manner the decision of issues that were disturbing the doll industry. So that if defendant’s contentions were right, that it was merely an agreement to contract, the court
The legal propositions are too obvious to enunciate, but in addition to this there is not one moral argument that can be urged to sustain defendant’s contention that it is not a contract but an agreement to make a contract. Defendant contends that this contract cannot now be enforced against defendant, whose association refused to appoint the board of adjustment called for by the decision of Dr. Stone and which has reaped all the benefits of settling a threatened strike. Defendant has moved to a distant State where it paid a nominal rent, but (even with this saving) has failed to carry out the terms of its binding engagement for collective bargaining under section 7-a of the National Industrial Recovery Act. The situation is just as if after all the proceedings by delegates to the crime conference at Washington the other day, where delegates came with credentials from every quarter, some man, after the conference accomplishes great good and adjourns, should arise and say the resolutions adopted and the measures agreed on were not authorized by the organizations that gave the credentials to the delegates, and what they did was only to agree to do what they did.
Dr. Stone, the arbitrator, was delegated to act for both, and in so acting was the agent for both. That an arbitrator is an agent of both parties was recognized in Hays v. Hays (23 Wend. 363), where the court said (at p. 367): “ Arbitrators are agents of both parties. Hence their acts can be considered as the acts of the parties themselves; and a balance found by the arbitrators is considered' as a balance struck by the parties on an account stated by themselves.”
Professor Williston, in his book on Contracts, says: “ Conceivably the agent may sign either his principal’s name without mentioning his own; he may sign his principal’s name stating that the signature of the principal is made by him as agent; he may sign his own name as agent for a specified principal; he may sign his own name as agent, but without mentioning for whom; or, finally, he may sign his own name without mentioning any agency.” (Williston on Contracts, § 587, p. 1136.)
To the same effect see Restatement of Contracts (Vol. 1, § 213, subd. 2), which states the rule as follows: “ The same third person may be the agent of both parties to a contract within the Statute for the purpose of signing a memorandum.”
The Restatement of the Law of Contracts (§§ 445, 550, 551) sets forth the rule in comment as under section 550 as follows:
This is a common-law arbitration in which no legal obligation existed prior to the actual arbitration.
Chief Judge Cardozo, at page 302 (Matter of Marchant v. Mead-Morris Mfg. Co,, 252 N. Y. 284) stated the rule thus: “ Under the rule at common law as established in this State, it was not a bar or defense to a remedy in the courts that the action was maintained in breach of a contract for the settlement of future differences by recourse to arbitration (Pres., etc., of D. & H. Canal Co. v. Penn. Coal Co., 50 N. Y. 250; United States Asphalt Ref. Co. v. Trinidad Co., 222 Fed. Rep. 1006).”
In President, etc., D. & H. Canal Co. v. Penn. Coal Co. (50 N. Y. 250, 266) the Court of Appeals distinguished arbitration as follows: “ The distinction between the two classes of cases is marked and well defined. In one class the parties undertake by an independent covenant or agreement to provide for an adjustment and settlement of all disputes and differences by arbitration, to the exclusion of the courts, and in the other they merely, by the same agreement which creates the liability and gives the right, qualify the right by providing that before a right of action shall accrue certain facts shall be determined or amounts and values ascertained, and this is made a condition precedent either in terms or by necessary implication.”
In Fidelity & Deposit Co. of Maryland v. Woltz (253 N. Y. Supp. 583) the court distinguished a common-law arbitration as a contractual and not as a judicial proceeding which results not in a judgment but in a cause of action against the defaulting party. The per curiam decision reads as follows: “ This was an attempted common-law arbitration which is a contractual, not a judicial, proceeding, and if properly conducted, results, not in a judgment, but in a cause of action against the party who does not obey the award.”
I am reviewing the facts presented on the trial which concern the violations of the collective agreement by the defendant, and under which agreement it was bound. The credible evidence on the trial established that the defendant breached, violated and abrogated the terms and provisions of the agreement. It failed and refused to pay its workers employed in its factory in the city of New York the minimum wages provided for in the contract by placing upon the workers in its factory in New York city additional duties not contemplated in the wage scale set forth in the agreement, thereby making it impossible for workers of average ability to earn the minimum wages; by sending out to workers’ homes materials to be manufactured by them into dolls’ dresses and other accessories; by sending out goods to be manufactured into dolls’ dresses to two non-union contractors in New Jersey; by locking out all of its workers, members of plaintiff union, employed in its factory in the city of New York, except some thirty, and by failing to co-operate
All witnesses testified that in settling piece rates a worker of average skill in each department was selected as a test hand. Based upon his production the average wage of all the other workers in the particular craft was arrived at. A worker who was more efficient was to receive more than the wages provided for in the agreement for a worker of average skill. A worker who was less competent might receive less than the minimum without the agreement being violated.
The witnesses Sorok, Caniglia and Cantarella, who testified upon behalf of the plaintiff, stated that the defendant violated the agree
The defendant did not produce any time card records of the week workers or the original production cards of the piece workers. The defendant’s witnesses testified that at the end of each week the cards were figured up and the total wage due each worker was entered in the payroll book and the cards were then destroyed. The books of the defendant did not show the hours worked nor the total amount produced by each worker for each week. It seems to me that the defendant had ample notice of the importance to the workers of these time cards, on the trial of the action, because of the affidavits filed on the motion for a temporary injunction. The necessity for keeping the cards intact was plainly indicated as a means of establishing the truth or falsity of the charges made by the workers. The alleged destruction of these time cards is sufficient of itself to warrant an unfavorable inference against the defendant, that their production would tend to establish plaintiff’s charges of bad faith and breach by the defendant. The cards
In Armour v. Gaffey (30 App. Div. 121; affd., 165 N. Y. 630) the court said: “ The well-settled principle, therefore, applied that ' where it appears that a party has destroyed an instrument or document, the presumption arises that if it had been produced, it would have been against his interest, or in some essential particulars unfavorable to his claims under it * * *. The inference is that the purpose of the party in destroying it was fraudulent.’ (‘Joannes’ v. Bennett, 5 Allen, 169, 172.) ”
This doctrine was reiterated in Matter of Eno (196 App. Div. 131, 163): “ It is well settled that the deliberate destruction of written evidence gives rise to the inference that the matter destroyed or mutilated is unfavorable to the spoliator. This unfavorable presumption will not dispense with the necessity of the other party introducing some other evidence of its contents, that it may appear that the documents destroyed were in fact relevant to the case. The presumption does not arise from the mere destruction of documents. It must appear that the documents were written evidence relevant to the issues, or at least the documents should by notice be required to be produced upon the trial.”
The Labor Law of Massachusetts (Chap. 149, §§48 and 52) reads as follows: “ Sec. 48. Every employer of labor engaged in carrying on any manufacturing or mercantile establishment in the commonwealth shall allow every person, except those specified in section fifty, employed in such manufacturing or mercantile establishment, at least twenty-four consecutive hours of rest in every seven consecutive days. No employer shall operate any such manufacturing or mercantile establishment on Sunday unless he has complied with section fifty-one. Whoever violates this section shall be punished by a fine of fifty dollars. Sec. 52. Every employer subject to section forty-eight shall keep a time book, open to inspection by the department, showing the names and addresses of all employees and the hours worked by each of them in each day. Whoever violates this or the preceding section shall be punished by a fine of fifty dollars.”
The evidence also established clearly the fact that defendant placed additional duties upon sprayers, which additional duties were not contemplated in the wage scale of the agreement, and in consequence sprayers of average ability were unable to earn their minimum wage.
Nini Cantarella, a sprayer employed by the defendant in its New York factory, testified that prior to March 19, 1934, the date
Paragraph eleventh of the collective agreement and article III, subdivision 7, of the Code of Fair Competition for the Toy and Playthings Industry expressly prohibits home work. Esposito, the manager of the union, testified that the defendant produced dolls’ dresses in the homes of the workers. He testified that just before the defendant moved its factory he observed women going to and coming from the factory, carrying packages; that he himself saw packages being wrapped in the factory containing cut goods which, were given to some of these women and that he also saw that the bundles which the women brought to the factory, upon being opened or unwrapped, contained dolls’ garments. Mr. Freundlich, on cross-examination, admitted that defendant sent out goods to be manufactured into dolls’ dresses to two non-union contractors in New Jersey. The plaintiff’s charge that the defendant violated the terms and provisions of paragraph ninth of the collective agreement by locking out the workers whom it employed in its factory in New York city, is sustained by the evidence. The paragraph provides: “ During the term of this agreement, there shall be no general lock-out, general strike, individual shop strike or shop stoppage pending the determination of any complaint or grievance.”
The testimony of the members of the plaintiff union who were employed in defendant’s factory in New York city show that when they heard that the defendant contemplated moving to Clinton, Mass., they requested employment in the new factory and were refused such employment. The testimony of Caniglia shows that in reply to his application for work in Clinton, the manager of defendant’s factory said: “ Take you and have to deal with the Union again? ”
Except for the foremen of the various departments and but few of the highly skilled workers who were selected to act as instructors
Defendant failed and refused to adhere to the minimum wage and maximum hour provisions of the agreement. Workers employed by defendant in its Clinton factory who were not members of the plaintiff union testified that they worked in excess of forty hours, and the eight hours overtime per week permitted in the months of September and October. It appeared from the testimony of Leon Poissant, Anthony Cieslik and Dominick Turini, all workers in the Clinton factory, that they worked more than forty-eight hours per week and that they were paid at the rate of single time for overtime. The Code of Fair Competition for Toy and Playthings Industry under article VI, subdivision 1 (a), provides that during the period of apprenticeship workers shall
In article III, section 1, the hours of labor for every employee are distinctly set forth. Sections 2, 3, 4 and 5 contain the exceptions to the rule. Thus, an apprentice or learner is an employee and since no exception is made in his case under sections 2, 3 and 4 of article III he comes within the exception of section 5, and during the peak of the season may work forty-eight hours provided that for every hour over forty he is paid at the rate of time and one-third.
A transcript of the defendant’s payroll book furnished by James Harrington, an investigator for the National Recovery Administration in Boston, shows wages earned by the workers during the weeks ending September 22 and September 29, 1934, but does not show the number of hours each employee worked. It was not disputed and in fact conceded by the defendant witnesses that each worker in the Clinton factory had either a time card or production card, depending upon whether he or she was a week worker or a piece worker. The witnesses stated that at the end of the week the wages due each worker were arrived at from these cards and the total entered into the payroll book. No entry, however, was made in the payroll book of the number of hours worked or the number of pieces produced. These cards were destroyed after the final figures had been entered into the payroll book. The defendant
Under article III, section 5, and article VI, section 4 (a), of the Code of Fair Competition for the Toy and Playthings Industry it is provided that the Code Authority shall have the power to require and receive reports from every employer in the industry as to wages and hours of labor “ showing actual hours worked by employees and minimum rate of wages.’’ Mr. Freundlich on cross-examination admitted that he knew of this provision, but gave no satisfactory explanation why the, cards and the productivity records-of each of his workers were destroyed. The alleged destruction of the cards under the circumstances disclosed on the trial makes it impossible to secure the facts obtainable only from these first hand original records. My finding on the alleged destruction is that there is at least a presumption in favor of the plaintiff’s case and against the defendant that had the cards been produced they would by documentary evidence have fully and completely sustained the charges made by the plaintiff of the various violations of the agreement as well as the Code. There was some significant testimony on the cross-examination of the defendant’s witness Weiss, supervisor of the foremen, as follows: “Q. I show you plaintiff’s exhibit 16 and ask you whether you observe the name J. Freel on there for the week ending September 22? Will you refresh your recollection as to how many hours Mr. Freel worked? A. That week he worked forty-eight hours. Q. And that was at the rate of 24c an hour? A. That would be right. Q. And he got $9.60 for the first 40 horns? A. Yes, sir. Q. And he got 24c an horn for each additional hour? A. Right. Q. Now look at the week ending September 29th for the same man, Freel, $11.64. Will you state how many hours that represents? A. That should represent 48 hours. Q. And that is 12c for that half hour? A. Yes. Q. Now I ask you to look at the name immediately above that, C. Morotti? A. Right. Q. He earned $11.52, did he not, for the week ending September 22d? A. Right. Q. And the week ending September 29th he earned $11.76? A. Right. Q. And does that show the number of hours he worked? A. No, only the
This testimony shows that workers were paid single time for overtime. Under paragraph fifth of the Collective Agreement the. rate fixed for overtime was time and one-half. Under article III, subdivision 5 of the Code of Fair Competition, the rate for overtime is fixed at time and one-third. Mr. Freundlich on cross-examination, admitted that those workers who were employed for more than six weeks — the apprenticeship period under the Code — in Clinton, Mass., did not receive the minimum wage provided for a worker of average skill under the collective agreement. The witness was interrogated by the court and he conceded that the wages paid such workers were about fifteen per cent lower than those paid in the New York factory. The figures compiled by the accountant for the plaintiff union indicated that the reduction was more than fifteen per cent. There was no evidence to warrant or justify such a reduction in the piece rates by the defendant.
Under the fifth paragraph of the collective agreement, it is provided that there shall be no more than two shifts in any one day. This provision, the- evidence shows, was violated by the defendant. John Miller, a worker employed as pressman in the defendant’s factory in Clinton, testified that the pressing department worked three shifts since the middle of October, 1934. He stated that when he came to work in the morning he often had to wait until the pressman who worked on the prior shift had finished his work; and that in the evening, after he had finished his work and. before he went home he saw the third shift come in and that he observed a worker oiling the very machine which he had used, in preparation for the night’s work.
Under the fourth paragraph of the collective agreement it is provided: “ The wages of employees shall be paid on Wednesday of each week for work done in the preceding week. The amount due the employees shall be marked on the envelopes of such employees.”
The witness Poissant, a worker employed in the factory in Clinton, Mass., presented six of his pay envelopes which he received from defendant. The pay envelopes were received in evidence. Five out of the six envelopes do not contain any notation thereon of the amount which was placed therein and due the witness for his work.
The defendant’s witnesses testified that all of the 600 or 700 workers who were erop1oyed by the defendant in its factory in Clinton, except twenty-five or thirty who came from New York city, were engaged as apprentices.
The defendant was bound by the Code provision with just as much force and effect as if the provisions had been written into the agreement. More than that, there was a penalty by law for the violation of the Code provision irrespective of whether or not the exact terms had been actually in the contract. When the Code was approved, the provisions, in so far as they related to the industry, became by implication a part and parcel of the contract. The plaintiff and/or any worker could have compelled obedience to the law by the defendant. The plaintiff union under the agreement had a right to resort to any remedies given by the statute, and it was not compelled to elect to proceed against the defendant as a breach in a court of equity or proceed under the statute. It has a right here to treat the violation as a breach of the contract without waiving any rights or remedies given by law under that statute. Though the contract contains a provision for a three months’ apprenticeship period, the Code limits the period to six weeks, and neither the union, the employer nor the workers themselves may violate the provisions by either consenting to an extension of the period or by waiver of their respective rights to enforce the law, and an extension of the period of apprenticeship beyond the six weeks is a violation of the law, and so, in my view of the Code, it became a part of the contract in so far as the time was limited to six'weeks and not three months. The view of the defendant that in any event it may fix the period for three months is not well taken. So that the defendant cannot secure an exemption from the operation of the Code, and in that way reduce the weekly earning of the learners and beginners during the period of apprenticeship, and this was frustrated when the
Under the Code provisions the period of apprenticeship is limited to six weeks at a minimum of nine dollars and sixty cents for forty hours’ labor, with a limitation upon the number of apprentices to ten per cent of the total number of workers in any factory. The witnesses Weiss and Trepner both testified that all of the Clinton workers were employed as apprentices at nine dollars and sixty cents per week. An excerpt of Trepner’s testimony is as follows: “ Q. When the Clinton workers were employed in the middle of August, what salaries were paid to them? A. $9.60.”
It is apparent that this in itself was a violation of the Code which is part of the agreement by implication, since the date of the approval of the Code, as it appears that more than ten per cent of the total number of workers in the factory were employed as apprentices and received the wages of learners. I am satisfied that the defendant in order to circumvent the agreement and the Code did transfer workers at the end of the six-week period from one department to another at the same apprentice wage, and this in violation of the agreement and the Code.
The testimony of Robert Freel, a worker employed by the defendant at Clinton, and who voluntarily appeared at the trial, showed that he was not a member of the plaintiff union; that he was employed as a polisher for six weeks at nine dollars and sixty cents per week for forty hours’ work, and that at the expiration of that period he was transferred to the patching department where he was employed again as an apprentice, receiving the same rate of pay.
The testimony of Anthony Cieslik, another worker employed by the defendant at Clinton, was to the same effect.
The testimony of both Mr. Weiss and Mr. Trepner on cross-examination showed that the practice of transfer was not resorted to in the New York factory and that the workers remained for years in the same department.
Article IV, section 4, of the Code of Fair Competition provides as follows: “ Employers shall not reclassify employees so as to defeat the purposes of this Act.”
A considerable amount of testimony was introduced to show the normal length of time which it would take workers without experience to learn the various operations in the doll industry. The witnesses for the plaintiff testified that it would take about one-
The plaintiff urges that the court direct the defendant be compelled to restore its factory in New York and to make a mandatory provision in its decree to so provide. The complaint does not seek such specific relief in the prayer, but the omission to do so does not prevent this court from granting such a judgment, irrespective of the relief sought, as the evidence warrants and in order to carry into effect its mandate. In any event the plaintiff seeks “ such other and further relief as to the court may seem just and proper.” This is ample to warrant a judgment to compel the employer to return to New York in the event that a judgment is so awarded. A decree as is suggested by the plaintiff is, of course, drastic, but it is quite evident that some employers require drastic measures to awaken them to the fact that a welfare measure like the National Industrial Becovery Act must be adhered to if there -is to be paid that respect which citizens owe to their country in the time of economic war. The defendant did not offer employment in its Clinton factory to all of its New York workers; it merely requested some twenty or thirty of them, most of whom were foremen of departments, to move to Clinton and continue to work for it.
The defendant, through its president, admitted on cross-examination that in seeking a new location for its factory it did not look anywhere in any of the boroughs of New York city or in Westchester county or in Long Island or elsewhere in the State of New York, except Beacon, N. Y.
The defendant offered as its sole excuse for moving to Clinton, Mass., the fact that the climate was drier in that place. The fact
The defendant, even before it commenced operating its Clinton factory, applied to the National Recovery Administration for an exemption from the operation of the Code of Fair Competition for the Toy and Playthings Industry, so that it might employ all of its workers as apprentices for the period of five months at a weekly wage of six dollars for forty hours of work instead of employing only ten per cent of its total number of employees as apprentices for a period of six weeks at a weekly wage of nine dollars and sixty cents for forty hours’ work.
Despite the denial by the National Recovery Administration of the defendant’s petition, the latter employed as apprentices all of its workers (about 600 in number), except twenty or thirty whom it invited from New York.
The defendant paid to the New York pressmen, whom it invited to work in the Clinton factory, the sum of thirty-five dollars per week for forty hours or at the rate of eighty-seven and one-half cents an horn instead of ninety-five cents an hour as provided for Under the agreement.
The defendant arbitrarily reduced in its Clinton factory the"piece-rate prices which had been agreed upon in the New York factory for workers of average skill.
The defendant paid its workers in the Clinton factory single time for overtime.
The defendant insisted that the workers in the Clinton factory work more than eight horns’ overtime per week.
The defendant operated three shifts in its Clinton factory.
The defendant destroyed the time cards of the week workers and production cards of the piece workers so that these records might not be subject to investigation by its own code authority and might not be produced at the trial.
The defendant continues to refuse to maintain a union shop in its Clinton factory despite Mr. Freundlich’s statement upon the trial that he would agree to employ members in good standing of plaintiff’s union whether they were regularly qualified workers or apprentices if the court should find that a provision for a “ closed shop ” does not violate section 7-a.
The plaintiff is entitled to an injunction permanently restraining defendant from violating the terms of the collective agreement, and it shall be in form similar to that of the temporary injunction
Concededly the plaintiff is entitled to damages sustained by reason of defendants’ deliberate breach of contract and in that respect the issue of the damages will be referred to a referee to take proof and determine. The decree shall not contain a provision at this time requiring the defendant to remove its factory from Clinton, Mass., to New York, for the reason that it is possible that the defendant may see the error of its ways in its endeavor to defeat the contract and the law, and see to it that the plaintiff union shall be used as a medium of furnishing the workers in accordance with the terms of the contract. The decree shall, however, provide that the plaintiff if necessary shall have the right to apply to this court for such further decree in order to carry into effect the provisions of the decree and of the full intentions of this court as may be required to compel the defendant to live up to its obligation fully and completely and with the same force and effect as if the factory was within the State of New York. If it shall appear after the entry of the judgment hereon that the defendant persists in violating the decree, the plaintiff may seek a further decree by amendment to the decree entered which shall contain a provision restraining the defendant from further violating its agreement in Clinton, Mass.
Settle findings on notice.